Himachal Pradesh High Court
Between vs Mukesh Kumar (2019)4 on 11 November, 2021
Bench: Sandeep Sharma
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 11TH DAY OF NOVEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No.127 of 2021
Between:
MS. SATYA PITAHAN, D/O SH. BIRJA NAND,
R/O VILLAGE PUJARLI, P.O. CHILALA,
TEHSIL CHIRGAON, DISTRICT SHIMLA, H.P.
....PETITIONER
(BY SH. DEEPAK BHASIN ADVOCATE)
AND
1. SH. BALBIR BANSHTU SON OF LATE
SH. SUKH CHAIN, R/O VILLAGE
DALGAON, P.O.KUTARA, TEHSIL
ROHRU, DISTRICT SHIMLA, HIMACHAL
PRADESH.
2. STATE OF HIMACHAL PRADESH.
....RESPONDENT
(BY SH.K.B.KHAJURIA, ADVOCATE
FOR R-1).
(BY SH. DESH RAJ THAKUR,
ADDITIONAL ADVOCATE GENERAL
WITH SH. NARENDER THAKUR, SH.
KAMAL KISHORE SHARMA AND SH.
GAURAV SHARMA, DEPUTY
ADVOCATE GENERALS, FOR R-2).
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the following:
O R D E R
Instant Criminal Revision petition filed under Section 397
of the Code of Criminal Procedure, is directed against the judgment,
dated 3.3.2021, passed by learned Sessions Judge (Forest) Shimla,
District Shimla, H.P., in Criminal Appeal No. 41-R/10 of 2019, affirming
.
the judgment of conviction dated 1.10.2019 and order of sentence
dated 25.10.2019, passed by learned Additional Chief Judicial
Magistrate, Court No.1, Rohru, District Shimla, H.P., in criminal case
No.RBT-324/3 of 2019/14, whereby learned trial Court while holding
petitioner-accused guilty of having committed an offence punishable
under Section 138 of the Negotiable Instruments Act, convicted and
sentenced her to undergo simple imprisonment for a period of one
year and to pay compensation to the tune of `10,00,000/- to the
complainant.
2. Precisely, the facts of the case as emerge from the record
are that the respondent (for short 'complainant') instituted a
complaint under Section 138 of the Negotiable Instruments Act (for
short 'Act') in the Court of learned Additional Chief Judicial Magistrate,
Court No.1, Rohru, District Shimla, H.P., alleging therein that on
5.6.2013, accused demanded friendly loan of `6, 00,000/- from the
complainant. Since complainant had friendly relation with her, he
made payment of `6, 00,000/- to the accused in cash on 5.6.2013.
With a view to discharge her liability, accused issued cheque
No.588813, dated 22.08.2013(Ex.CW1/B), amounting to `6,00,000/-
in favour of the complainant drawn at State Bank of India of her
account No.32608692802, but fact remains that on presentation
aforesaid cheque was dishonoured on account of insufficient funds in
the account of the accused, as is evident from memo Ex. CW/D,
issued by the bank concerned. After receipt of aforesaid memo,
.
complainant issued legal notice Ex.CW1/E, dated 29.11.2013 through
registered A.D. post Ex.CW1/F, calling upon the accused to make the
payment good within the stipulated time, but since accused failed to
make the payment good within the time stipulated in the legal notice,
complainant was compelled to institute complaint under Section 138
of the Act in competent court of law.
3. Learned trial Court on the basis of the evidence adduced
on record by the respective parties, held accused guilty of having
committed the offence punishable under Section 138 of the Act, and
accordingly convicted and sentenced her as per the description given
hereinabove.
4. Being aggrieved and dissatisfied with the aforesaid
judgment of conviction and order of sentence recorded by trial court,
present petitioner-accused preferred an appeal in the Court of
learned Sessions Judge (Forest) Shimla, which also came to be
dismissed vide judgment dated 3.3.2021, as a consequence of which,
judgment of conviction and order of sentence recorded by trial Court
came to be upheld. In the aforesaid background, petitioner has
approached this Court in the instant proceedings, praying therein for
her acquittal after quashing and setting aside the impugned
judgments and order of sentence passed by learned Courts below.
5. Vide order dated 29.6.2021, this Court suspended the
substantive sentence imposed by court below subject to the
.
petitioner's depositing 50% of the entire compensation amount
within a period of three months and furnishing personal bonds in the
sum of Rs. 50,000/- with one surety in the like amount to the
satisfaction of trial Court. However, fact remains that aforesaid order
never came to be complied with despite repeated opportunities.
Today, during the proceedings of the case, learned counsel
representing the petitioner apprised this Court that despite repeated
communications, petitioner is not coming forward to impart
instructions and as such, matter may be heard and decided on its
own merit.
6. Having heard learned counsel representing the parties
and perused the material available on record, this Court finds no
force in the submission of learned counsel representing the petitioner
that Courts below have failed to appreciate the evidence in its right
perspective, rather this Court is convinced and satisfied that
complainant successfully proved on record that he advanced friendly
loan of `6,00,000/- to the accused, who with a view to discharge her
lawful liability, issued cheque Ex.CW1/B, amounting to `6,00,000/-,
but same was dishonoured on account of insufficient funds in the
bank account of the accused. Interestingly, in the case at hand, there
is no denial, if any, on the part of the accused with regard to issuance
of cheque, rather she has categorically stated that she had borrowed
sum of `1,00,000/- only and in lieu thereof, had given blank cheque
to the complainant, which was subsequently misused by the
.
complainant.
7. Complainant with a view to prove his case examined
himself as CW-1 and deposed through his affidavit EX.CW1/A, perusal
whereof reveals that he stated/narrated the contents of the complaint
verbatim in the affidavit tendered in the evidence. Besides above,
this witness also tendered in evidence Cheque Ex.CW1/B, cheque
presentation slip Ex.CW1/C, dishonour memo Ex.CW1/D, legal notice
Ex.CW1/E, postal receipt Ex.CW1/F and acknowledgment Ex.CW1/G.
8. Accused in her statement recorded under Section 313
Cr.P.C., nowhere denied the factum with regard to issuance of
cheque, but claimed that same was issued as a security. Since, there
is no dispute with regard to issuance of cheque in question as well as
signatures thereupon of the accused, there is presumption under
Sections 118 and 139 of the Act that cheque was issued by the
accused towards discharge of her lawful liability. No doubt, aforesaid
presumption is rebuttal, but for that purpose, accused was under
obligation to raise probable defence, which could be either raised by
leading positive evidence or by referring to the material adduced on
record by the complainant. However, in the instant case, accused has
not been able to raise any probable defence, rather she has simply
stated that she had handed over blank cheque. Once, she has
admitted factum with regard to borrowing sum of `1,00,000/-, it is not
understood that where was the occasion for her to issue blank
cheque, as has been claimed by her.
.
9. Reliance is placed upon the judgment rendered by
Hon'ble Apex Court in Bir Singh versus Mukesh Kumar (2019)4
Supreme Court Cases 197, wherein it has been held as under:-
"6. The object of Section 138 of the Negotiable Instruments
Act is to infuse credibility to negotiable instruments
including cheques and to encourage and promote the use
of negotiable instruments including cheques in financial
transactions. The penal provision of Section 138 of the
Negotiable Instruments Act is intended to be a deterrent
to callous issuance of negotiable instruments such as
cheques without serious intention to honour the promise
implicit in the issuance of the same.
20. Section 139 introduces an exception to the general rule
as to the burden of proof and shifts the onus on the
accused. The presumption under Section 139 of the
Negotiable Instruments Act is a presumption of law, as
distinguished from presumption of facts. Presumptions are
rules of evidence and do not conflict with the presumption
of innocence, which requires the prosecution to prove the
case against the accused beyond reasonable doubt. The
obligation on the prosecution may be discharged with the
help of presumptions of law and presumptions of fact
unless the accused adduced evidence showing the
reasonable possibility of the non- existence of the
presumed fact as held in Hiten P. Dalal.
24. In K.N. Beena vs. Muniyappan, this Court held that in view
of the provisions of Section 139 of the Negotiable
Instruments Act read with Section 118 thereof, the Court
had to presume that the cheque had been issued for
discharging a debt or liability. The said presumption was
rebuttable and could be rebutted by the accused by
proving the contrary. But mere denial or rebuttal by the
accused was not enough. The accused had to prove by
cogent evidence that there was no debt or liability. This
Court clearly held that the High Court had erroneously set
aside the conviction, by proceeding on the basis that
denials/averments in the reply of the accused were
sufficient to shift the burden of proof on the complainant
to prove that the cheque had been issued for discharge of
a debt or a liability. This was an entirely erroneous
approach. The accused had to prove in the trial by leading
cogent evidence that there was no debt or liability.
32. The proposition of law which emerges from the judgments
referred to above is that the onus to rebut the
presumption under Section 139 that the cheque has been
issued in discharge of a debt or liability is on the accused
.
and the fact that the cheque might be post dated does
not absolve the drawer of a cheque of the penal
consequences of Section 138 of the Negotiable
Instruments Act.
33. A meaningful reading of the provisions of the Negotiable
Instruments Act including, in particular, Sections
20, 87 and 139, makes it amply clear that a person who
signs a cheque and makes it over to the payee remains
liable unless he adduces evidence to rebut the
presumption that the cheque had been issued for
payment of a debt or in discharge of a liability. It is
immaterial that the cheque may have been filled in by
any person other than the drawer, if the cheque is duly
signed by the drawer. If the cheque is otherwise valid, the
rpenal provisions of Section 138 would be attracted.
34. If a signed blank cheque is voluntarily presented to a
payee, towards some payment, the payee may fill up the
amount and other particulars. This in itself would not
invalidate the cheque. The onus would still be on the
accused to prove that the cheque was not in discharge of
a debt or liability by adducing evidence.
36. Even a blank cheque leaf, voluntarily signed and handed
over by the accused, which is towards some payment,
would attract presumption under Section 139 of the
Negotiable Instruments Act, in the absence of any cogent
evidence to show that the cheque was not issued in
discharge of a debt."
10. Complainant deposed through affidavit Ex.CW1/A that he
made payment of `6, 00,000/- to the accused in cash on 5.6.2013 at
Rohru. With a view to discharge aforesaid liability, accused issued
cheque No.588813, dated 22.8.2013, amounting to `6,00,000/- drawn
at SBI, but on presentation aforesaid cheque was dishonoured by the
bank on account of insufficient funds in the account of the accused.
He also deposed that on 29.11.2013, he issued legal notice to the
accused calling upon her to make the payment well within stipulated
time and such notice was received by the accused on 3.12.2013, but
.
yet she failed to repay the cheque amount within stipulated period of
notice. He also tendered in evidence dishonoured cheque Ex.CW1/B,
cheque presentation slip Ex.CW1/C, dishonour memo Ex.CW1/D, legal
notice Ex.CW1/E, postal receipt Ex.CW1/F and acknowledgment
Ex.CW1/G and successfully proved on record that he immediately
after having received dishonour memo took all necessary steps as
provided under Section 138 of the Act for securing amount lent by
him to the accused. Cross-examination conducted upon this witness
nowhere suggests that opposite party was able to extract anything
contrary to what this witness stated in his examination-in-chief. This
witness categorically stated in his cross-examination that accused did
not return any money. He also denied that cheque was given blank
after putting signatures as security. He also denied that despite
having received money, he misused the blank cheque to grab the
money. This witness specifically denied the suggestion put to him
that he filled cheque himself.
11. Accused while deposing as DW-1 stated that she had
received `1,00,000/- 3-4 years earlier and lieu thereof, had given
complete payment to the complainant, but she does not remember
whether she demanded her cheque from the complainant or not. She
also deposed that she was not to give any money to the complainant.
In her cross-examination, she denied that during the pendency of
case she had given two cheques. She could not recollect that on
5.1.2017 she had given cheque bearing No.588835 for `1,00,000/- in
.
the Court. However, during her cross-examination she admitted that
she had issued cheque Ex. PX for sum of `1,00,000/- to the
complainant, which bears date 9.1.2017. She also admitted that on
10.3.2017, she issued another cheque Ex.PZ to the complainant and
both the cheques issued to the complainant were not honoured. She
feigned her ignorance that why she had given two cheques to the
complainant. She stated that cheque Ex.CW1/B is of her and bears
her signatures in red circle 'A' on the same. She also admitted that
on 20.11.2013, there was insufficient fund in her account and
Ex.CW1/G bears her signatures in red circle.
12. Entire evidence led on record by the respective parties,
clearly indicates that accused had issued cheque Ex.CW1/B to the
complainant towards discharge of her lawful liability. Though,
accused claimed before the court below that she had repaid the
amount and has no liability towards the complainant, but to that
effect no cogent and convincing evidence ever came to be led on
record. As has been taken note hereinabove, accused could rebut the
presumption in favour of the complainant that cheque in question
was issued in lieu of discharge of her lawful liability by leading
probable defence but in the case at hand neither accused was able to
explain the mode of repayment of `6,00,000/-, if any, made by her to
the complainant nor she was able to prove that blank cheque, if any,
was given by her as security and same was misused by the
complainant.
.
13. Leaving everything aside, factum with regard to issuance
of cheque and signature thereupon stands duly admitted by the
accused and as such, there is presumption in favour of the
complainant that he had received cheque in question issued towards
lawful liability.
14. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of
Gujarat, 2013(1) RCR(Criminal), has categorically held that if the
accused is able to establish a probable defence which creates doubt
about the existence of a legally enforceable debt or liability, the
prosecution can fail. To raise probable defence, accused can rely on
the materials submitted by the complainant. Needless to say, if the
accused/drawer of the cheque in question neither raises a probable
defence nor able to contest existence of a legally enforceable debt or
liability, statutory presumption under Section 139 of the Negotiable
Instruments Act, regarding commission of the offence comes into
play. It would be profitable to reproduce relevant paras No.23 to 25 of
the judgment herein:-
"23. Further, a three judge Bench of this Court in the matter
of Rangappa vs. Sri Mohan [3] held that Section 139 is
an example of a reverse onus clause that has been
included in furtherance of the legislative objective of
improving the credibility of negotiable instruments.
While Section 138 of the Act specifies the strong
criminal remedy in relation to the dishonour of the
cheques, the rebuttable presumption under Section 139
is a device to prevent undue delay in the course of
litigation. The Court however, further observed that it
must be remembered that the offence made punishable
by Section 138can be better described as a regulatory
offence since the bouncing of a cheque is largely in the
nature of a civil wrong whose money is usually confined
.
to the private parties involved in commercial
transactions. In such a scenario, the test of
proportionality should guide the construction and
interpretation of reverse onus clauses and the
defendant accused cannot be expected to discharge an
unduly high standard of proof". The Court further
observed that it is a settled position that when an
accused has to rebut the presumption under Section
139, the standard of proof for doing so is all
preponderance of probabilities.
24. Therefore, if the accused is able to establish a probable
defence which creates doubt about the existence of a
legally enforceable debt or liability, the prosecution can
fail. The accused can rely on the materials submitted by
r the complainant in order to raise such a defence and it
is inconceivable that in some cases the accused may
not need to adduce the evidence of his/her own. If
however, the accused/drawer of a cheque in question
neither raises a probable defence nor able to contest
existence of a legally enforceable debt or liability,
obviously statutory presumption under Section 139 of
the NI Act regarding commission of the offence comes
into play if the same is not rebutted with regard to the
materials submitted by the complainant.
25. It is no doubt true that the dishonour of cheques in order
to qualify for prosecution under Section 138 of the NI
Act precedes a statutory notice where the drawer is
called upon by allowing him to avail the opportunity to
arrange the payment of the amount covered by the
cheque and it is only when the drawer despite the
receipt of such a notice and despite the opportunity to
make the payment within the time stipulated under the
statute does not pay the amount, that the said default
would be considered a dishonour constituting an
offence, hence punishable. But even in such cases, the
question whether or not there was lawfully recoverable
debt or liability for discharge whereof the cheque was
issued, would be a matter that the trial court will have
to examine having regard to the evidence adduced
before it keeping in view the statutory presumption that
unless rebutted, the cheque is presumed to have been
issued for a valid consideration. In view of this the
responsibility of the trial judge while issuing summons to
conduct the trial in matters where there has been
instruction to stop payment despite sufficiency of funds
and whether the same would be a sufficient ground to
proceed in the matter, would be extremely heavy."
15. Having carefully examined the evidence available on
.
record, this Court sees no reason to interfere with the well reasoned
judgments passed by the courts below, which otherwise appear to
be based upon the correct appreciation of evidence and as such,
same need to be upheld. Moreover, this Court has a very limited
jurisdiction under Section 397 of the Cr.PC, to re-appreciate the
evidence, especially, in view of the concurrent findings of fact and
law recorded by the courts below. In this regard, reliance is placed
upon the judgment passed by Hon'ble Apex Court in case "State of
Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme
Court Cases 452, wherein it has been held as under:-
"In its revisional jurisdiction, the High Court can call
for and examine the record of any proceedings for the
purpose of satisfying itself as to the correctness,
legality or propriety of any finding, sentence or order.
In other words, the jurisdiction is one of supervisory
jurisdiction exercised by the High Court for correcting
miscarriage of justice. But the said revisional power
cannot be equated with the power of an appellate
court nor can it be treated even as a second appellate
jurisdiction. Ordinarily, therefore, it would not be
appropriate for the High Court to re-appreciate the
evidence and come to its own conclusion on the same
when the evidence has already been appreciated by
the Magistrate as well as Sessions Judge in appeal,
unless any glaring feature is brought to the notice of
the High Court which would otherwise tantamount to
gross miscarriage of justice."
16. Since after having carefully examined the evidence in the
present case, this Court is unable to find any error of law as well as
fact, if any, committed by the courts below while passing impugned
judgments, and as such, there is no occasion, whatsoever, to exercise
.
the revisional power.
17. True it is that the Hon'ble Apex Court in Krishnan and
another Versus Krishnaveni and another, (1997) 4 Supreme Court
Case 241; has held that in case Court notices that there is a failure of
justice or misuse of judicial mechanism or procedure, sentence or
order is not correct, it is salutary duty of the High Court to prevent
the abuse of the process or miscarriage of justice or to correct
irregularities/ incorrectness committed by inferior criminal court in its
judicial process or illegality of sentence or order, but learned counsel
representing the accused has failed to point out any material
irregularity committed by the courts below while appreciating the
evidence and as such, this Court sees no reason to interfere with the
well reasoned judgments passed by the courts below.
18. Consequently, in view of the discussion made herein
above as well as law laid down by the Hon'ble Apex Court, this Court
sees no valid reason to interfere with the well reasoned finding
recorded by the courts below, which otherwise, appear to be based
upon proper appreciation of evidence available on record and as
such, same are upheld.
19. Accordingly, the present revision petition is dismissed
being devoid of any merit. The petitioner is directed to surrender
herself before the learned trial Court forthwith to serve the sentence
as awarded by learned trial Court, if not already served. Interim
direction, if any, stands vacated. Pending applications, if any, also
.
stand disposed of.
11th November, 2021 (Sandeep Sharma),
(shankar) Judge
r to
