Himachal Pradesh High Court
Gurbachan Singh Son Of vs Kamli Devi on 10 December, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 10th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CRIMINAL APPEAL No.317 of 2010
Between:
GURBACHAN SINGH SON OF
SHRI RANGA RAM, RESIDENT
OF MAIN BAZAR, PANDOH,
TEHSIL SADAR, DISTT.
MANDI, H.P.
....APPELLANTCLAIMANT.
(BY. MR. G.R. PALSRA, ADVOCATE)
AND
SMT. KAMLI DEVI WIFE OF
SHRI RUP CHAND, R/O
VILLAGE SOJHA, P.O.
PANDOH, TEHSIL SADAR,
DISTT. MANDI, H.P.
.... RESPONDENT/ACCUSED.
(BY MS. MONIKA, LEARNED LEGAL AID COUNSEL)
Whether approved for reporting?1 Yes
This appeal coming on for hearing this day, the Court passed the following:
JUDGMENT
The issue involved in this appeal is in a very narrow
compass.
A complaint filed by the present appellant under Section
.
138 of the Negotiable Instruments Act stands dismissed by the
learned Judicial Magistrate, 1st Class, Court No.3, Mandi, H.P., vide
judgment 26.04.2010, passed in Criminal Complaint No.18
III/2006, titled as Gurbachan Singh Versus Kamli Devi, on the
ground that as the cheque subject matter of the complaint stood
issued as a 'security cheque', therefore, said cheque i.e. the security
cheque did not attract the provisions of Section 138 of the Negotiable
Instruments Act.
2. Brief facts, necessary for the adjudication of the present
appeal are as under:
As per the appellant/complainant, the respondent/
accused took a loan of Rs.55,000/ from him and in lieu of the
same, she handed over a cheque for an amount of Rs.55,000/,
drawn upon Punjab National Bank, Pandoh, Tehsil Sadar,
Distti.Mandi, H.P., in his favour on 28.12.2005. The amount of
Rs.55,000/ was borrowed in the 3rd week of October, 2005. It is
further the case of the complainant that when said cheque was
handed over for its collection to the bank concerned, the same was
dishonoured on the ground of insufficiency of funds. Thereafter, a
statutory notice was issued to the respondent/accused for payment
of the said amount, but as the accused did not heed to the said
notice, complaint stood filed under Section 138 of the Negotiable
.
Instruments Act. This complaint has been dismissed by the learned
Trial Court vide judgment dated 26.04.2010, primarily on the
ground that as the cheque was issued by way of security, therefore,
such like cheques do not attract the provisions of Section 138 of the
Negotiable Instruments Act.
3.
Mr. G.R. Palsra, learned counsel for the appellant has
argued that the judgment passed by the learned Trial Court is not
sustainable in the eyes of law as it has been clearly laid down by
Hon'ble Supreme Court of India that even dishonouring of such
cheques which are issued by way of security, do attract the
provisions of Section 138 of the Negotiable Instruments Act. He has
placed reliance on the judgment of Hon'ble Supreme Court in (2016)
3 Supreme Court Cases, titled as Don Ayengia Versus State of Assam
and Another, in which Hon'ble Supreme Court has been pleased to
hold in Para12 thereof as under:
"12. The difficulty arises only because the promissory
note uses the words "security" qua the cheques. This
would ordinarily and in the context in which the cheques
were given imply that once the amount of rupees ten
lakhs was paid, the cheques shall have to be returned.
There would be no reason for their retention by the
complainant or for their presentation. In case, however,
the amount was not paid within the period stipulated,
the cheques were liable to be presented for otherwise
.
there was no logic or reason for their having been issued
and handed over in the first instance. If nonpayment of
the agreed debt/liability within the time specified also
did not entitle the holder to present the cheques for
payment, the issuance and delivery of any such cheques
would be meaningless and futile, if not absurd."
4. Accordingly, learned counsel for the appellant has
submitted that as the judgment passed by learned Trial Court below
is inconflict with the law of land as has been laid down by Hon'ble
Supreme Court of India, therefore, the present appeal be allowed.
5. Defending the order passed by the learned Court below,
Ms. Monika, learned Legal Aid Counsel appearing for the respondent
has argued that as the cheque was issued just as a security and
otherwise also as the borrowed amount stood paid back by the
accused to the complainant, the filing of the complaint was nothing,
but an act of harassment on the part of the complainant and the
complaint accordingly stands rightly rejected by the learned Trial
Court below. She has argued that the onus to demonstrate that the
cheque was issued in lieu of some loan etc. taken from the
complainant by the accused was squarely upon the complainant
which he failed to discharge, as no evidence was brought on record
to prove the allegations contained in the complaint. She has
accordingly prayed that as the judgment passed by the learned Trial
.
Court is a wellreasoned judgment, duly substantiated by the law as
stands mentioned therein, therefore, the present appeal being devoid
of any merit be dismissed.
6. I have heard learned counsel for the parties and have
also gone through the judgment passed by the learned Trial Court as
well as record of the case.
7. to
As I have already mentioned hereinabove, the complaint
of the present appellant stood dismissed by the learned Trial Court
on the sole ground that as the cheque stood issued by the
respondent to the complainant by way of security, therefore, such
like cheques do not attract the provisions of Section 138 of the
Negotiable Instruments Act. This Court is of the considered view that
these findings which have been returned by the learned Trial Court
are not sustainable in the eyes of law.
8. Section 138 of the Negotiable Instruments Act deals with
penalties in case of dishonour of certain cheques for insufficiency of
funds in the account. A perusal of the said statutory provision
demonstrates that there is no distinction which is made therein with
regard to a cheque which is dishonoured on account of insufficiency
of funds etc. in the account, in case it is issued as a security visà
vis a cheque which has not been issued as a security. In fact, this
issue is no more res integra and Hon'ble Supreme Court of India in
.
Don Ayengia Versus State of Assam and Another's case (supra) has
been pleased to hold that the cheques which are issued by way of
security, cannot be treated to be ornamental only and the person in
whose favour such cheque has been issued, has a right to present
the cheque for payment if the agreed debt/liability is not paid within
the time specified.
9. Therefore, this Court is of the considered view that as
the judgment under challenge is inconflict with the law as stands
laid down by Hon'ble Supreme Court of India, the same is not
sustainable in the eyes of law.
10. Accordingly, this appeal is allowed and judgment dated
26.04.2010, passed by the Court of learned Judicial Magistrate, 1 st
Class, Court No.3, Mandi, H.P., in Criminal Complaint No.18
III/2006, titled as Gurbachan Singh Versus Kamli Devi, is ordered to
be set aside and the matter is remanded back to the learned Trial
Court for adjudication afresh on merit.
11. It is clarified that as far as the merits of the case are
concerned, this Court has not expressed any opinion thereof and the
case be decided by the learned Trial Court on the basis of the
pleadings of the parties and the respective stand taken by them
before the learned Trial Court and the evidence which stands led by
them to prove their respective contentions. It is further clarified that
.
the learned Trial Court shall not be influenced by any observation
which might have been made by this Court in this judgment as far
as the adjudication of the complaint on merit is concerned.
12. The appeal stands disposed of accordingly, so also
pending miscellaneous applications, if any.
December 10, 2021
(rishi)
r to (Ajay Mohan Goel)
Judge
