Himachal Pradesh High Court
And Post Office Burua vs Shri Anokh Ram on 3 September, 2021
Bench: Sureshwar Thakur
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 3rd DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SURESHWAR THAKUR
CRIMINAL REVISION No. 283 OF 2017.
Between:-
TARA CHAND, SON OF SH.
RAM DASS, RESIDENT OF VILLAGE
AND POST OFFICE BURUA, TEHSIL
MANALI, DISTRICT KULLU, H.P.
..... PETITIONER.
(BY MR. B.P. SHARMA, SR. ADVOCATE
WITH MR. G.K. NADDA AND MR. ARUN
KUMAR, ADVOCATES)
AND
1. SHRI ANOKH RAM, SON OF
SH. TEHLU RAM, (DEAD) THROUGH
LEGAL HEIRS;-
1(i) SHEELA @ SHESHI DEVI WIDOW
1(ii) CHANDER, SON
1(iii)SUMITRA, DAUGHTER
1(iv) SHYAMI DEVI MOTHER
ALL RESIDENT OF VPO BURUA,
TEHSIL MANALI, DISTRICT KULLU,
::: Downloaded on - 31/01/2022 23:00:31 :::CIS
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H.P.
.
.....RESPONDENTS.
(MR. V.S. CHAUHAN, SENIOR
ADVOCATE WITH MR. AJAY
KASHYAP, ADVOCATE )
RESERVED ON: 25TH AUGUST, 2021.
DELIVERED ON: 3RD SEPTEMBER, 2021.
These Criminal Revision coming on for hearing this
day, the Court passed the following:-
JUDGMENT
The learned trial Court, upon, Criminal Case No. 47-
1/2014/137-III/2014, decided on 15.11.2016, made a verdict of
conviction, upon the accused, for his committing an offence
punishable, under Section 138 of the Negotiable Instruments
Act. Though a separate order drawn on 16.11.2016, the learned
trial Court imposed, upon the accused, a sentence of
imprisonment extending upto a period of 9 months, for his
committing an offence punishable under Section 138 of the N.I.s
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Act. Moreover, the learned trial Court, through the afore drawn
order, awarded a lump sum compensation carried in a sum of
Rs.16,00,000/- to the complainant, and, ordered its being
recovered from the accused one Tara Chand.
2. The accused convict becoming aggrieved from the
afore drawn verdict of conviction, and, consequent therewith
sentence becoming imposed, upon him, by the learned trial
Court, proceeded to institute an appeal bearing Cr. Appeal No.
49 of 2016, before the learned First Appellate Court. The
learned First Appellate Court through its verdict made thereon,
on 1.8.2017, declined to interfere with the verdict supra
recorded by the learned trial Court.
3. Therefore, the accused/convict is led to institute
thereagainst the extant Criminal Revision Petition before this
Court.
4. Cheque Ex.CW1/B carrying therein a sum of
Rs.15,00,000/-, on its presentation before the bank concerned,
became dishonoured. Ex.CW1/C, is the memorandum issued by
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the bank concerned, and, makes a disclosure therein, that for
want of sufficient funds existing in the account of the
petitioner/accused, the bank concerned not becoming facilitated
to honour, the cheque supra, as, become presented before it, by
the complainant.
5.
Thereafter, since subsequent to the
statutory notice, by the complainant to the accused, and, as
r issuance of
becomes borne in Ex.CW1/D, notice whereof became sent
through registered post, to the respondent/accused, and,
became accompanied by an acknowledgement borne in
Ex.CW1/F, yet the notice (supra), not begetting the requisite
compliance from the accused/petitioner. Consequently, the
complainant was led to institute the complaint, under Section
138 of the Negotiable Instruments Act.
6. The complainant, during the course of his
examination-in-chief tendered his affidavit comprised, in
Ex.CW1/A, and, therein he maintained that various amounts
either through cheque or through cash, all totalling a sum of Rs.
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15 lacs became disbursed to the respondent/accused. He avers
therein, that the afore sums were disbursed as loan, to the
accused/petitioner, as, he was in dire need of money, owing to
family problems, and, for his meteing the expenses towards his
medical treatment. He has also echoed therein, that some of
the amounts became received by the accused through his wife
one Smt. Khema Devi. Moreover, he has also averred therein
that the accused had orally offered to sell his land to him, and,
in lieu of the afore orally agreed transfer of land to him by the
accused, the latter made borrowings of a sum of Rs.15 lacs from
him. He contends that since the oral promise became reneged
by the accuse,d thereupon, the latter issued cheque bearing an
amount of Rs.15 lacs. Obviously he maintained, that the
dishonour of the cheque amount by the bank concerned, did
hence constitute a validly recoverable amount by him from the
accused. In other words, he maintained that the cheque
amount be construable to be in discharge of contractual liability
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supra, or/and, towards the discharge of a legally enforceable
debt supra.
7. The accused has not denied the existence of his valid
signatures, upon the cheque comprised in Ex.CW1/B. He
though, during the course of cross-examination of the
complainant, did not make suggestion to him, appertaining to
the particulars carried therein being not scribed in his hands,
nor obviously any elicitations surged forth, from the
complainant manifestative of the particulars occurring therein
being in the hands of the accused. However, during the course
of proceedings, as, became drawn under Section 313 of the
Cr.P.C., the accused made a bald statement, that the particulars
carried in the dishonoured cheque, being not filled by him,
rather the validly signatured cheque becoming issued, as blank
to the complainant. Since, thereafter the accused, did not,
proceed to seek comparison of the scribed particulars carried in
the cheque, with his admitted handwriting(s) rather by the
expert concerned, therefore, it is concluded that the afore made
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bald statement in the afore drawn proceedings, do not carry
,any evidentiary worth.
8. Though, upon the afore stated factum, this Court is
led to make a prima facie conclusion, that the presumption
embodied in Section 139 of the Negotiable Instruments Act,
provisions whereof stand extracted hereinafter:-
"139. Presumption in favour of holder.--It shall be
presumed, unless the contrary is proved, that the
holder of a cheque received the cheque of the nature
referred to in section 138 for the discharge, in whole or
in part, of any debt or other liability."
do leverage in the complainant, to, upon all the scribings
inclusive of signatures remaining unrebutted through adduction
of cogent evidence (supra), to contend, qua his being a valid
holder in due course of the dishonoured cheque, and, to also
concomitantly hence contend, that the issuance of the
negotiable instrument being towards the discharge of the legally
enforceable debt or some other valid contractual liability.
However, the afore presumption is rebuttable, and, the onus for
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rebutting the afore presumption became cast upon the accused,
and, also became enjoined to be discharged by him.
9. As stated supra, the reason for making payments of
cheque amount to the accused by the complainant, do occur.
However, the accused upon his stepping into the witness box
after closure of proceedings drawn under Section 313 of the
Cr.P.C., in his examination-in-chief, articulated that he had
issued cheque in lieu of his taking groceries, on loan, from the
shop owned by the complainant. He has also echoed in his
examination-in-chief, that the total groceries taken as loan from
the shop of the complainant, were only in a sum of Rs.65,000/-.
The afore echoings existing in the examination-in-chief of the
accused, never become attempted to be scuttled, of their apt
vigour by the learned counsel appearing for the complainant,
while subjecting the accused to cross-examination.
Consequently, the afore factum acquires an aura of evidentiary
vigour, and, does belie the stand (supra) maintained by the
complainant. .
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10. However, since also hence the accused acquiesced,
to the factum that the cash value of the groceries taken on loan,
by the accused from the shop of the complainant, becoming
comprised in a sum of Rs.65000/-, and, has also admitted that
the cheque carrying rather a sum of Rs.15,00,000/- became
issued by him. Therefrom, there appears a prima facie gross
disproportion inter se the afore made unrebutted articulations,
as became carried in the examination-in-chief of the accused,
and, the amount carried in the dishonoured cheque. However,
even in the face of disproportion (supra), this Court is yet to
assess, whether as a matter of fact, in the face of the
complainant, in his cross-examination though admitting qua his
operating a commercial establishment, and, his also becoming
engaged in financing, the apposite borrowers, whether hence
there was any necessity, cast upon the complainant, to maintain
books of accounts, carrying the completest concurrence with the
amount carried in the dishonoured negotiable instrument(s).
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11. The necessity of books of accounts being maintained
in the commercial establishment(s), of the complainant, and,
appertaining to his private lending business, and, to his shop,
which rather he acquiesced being not maintained by him, does
per se ensure, the erection of an inference, that the accused
though, did take groceries from the commercial establishment
of the accused, as loan, with a promise to subsequently liquidate
the amounts in proportion therewith. Consequently, the
complainant was enjoined to maintain books of accounts in
respect thereto, which he, however, omitted to maintain or to
produce. Therefore, the acquiesced omission supra, can be
construed to rebut the presumption attached to the accused
hence issuing the dishonoured cheque to the complainant, for
his therethroughs liquidating the moneys borrowed by him, as,
sale consideration, for his transferring his land to the
complainant. The ensuing sequel thereof, is that,, for his
omission supra, and, also for want of cross-examination upon
the accused, despite the latter in his examination-in chief,
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echoing qua his purchasing groceries on loan from the
complainant's shop, rather the amount carried in the
dishonoured cheque, being proven through cogent rebuttal(s)
(supra), to the statutory presumption, hence by the accused, to
be, rather not towards discharge of any legal or other liability
(supra), as maintained (supra) by the complainant.
the complaint becomes falsified.
r Therefore,
12. The factum of through the afore mode, rather the
accused rebutting the statutory presumption attached to the
holder of the dishonoured negotiable instrument, carrying
thereons, the, valid signatures, and, also scribings of the
accused, yet preserved a further opportunity to the complainant,
to even after his making the afore acquiescences (supra), to after
rummaging through all the ledgers, and, books of accounts
appertaining to his lending money to the accused, seek leave
of the court to adduce them in evidence. The adduction of the
evidence (supra) may have belied the accused. However, the
complainant, even after his making the afore acquiescences
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appertaining to his omission supra, and, also to his acquiescing
to the accused purchasing groceries rather from his grocery
shop, did not, attempt to rebut through adductions of all the
ledgers, and, books of accounts maintained in the commercial
establishment(s) concerned, hence the successful discharging
(supra) by the accused.
r to
evidence in rebuttal to the statutory presumption, as, adduced
Consequently, since he failed to avail
the afore opportunity, thereupon, the effect of his acquiesced
omission (supra), is that the amount carried, in the dishonoured
cheque became made therein, by the accused, only under a
bonafide belief, as became conveyed, to him, by the
complainant, that the amount carried thereins, being co-
equivalent to the amounts of groceries, taken as loan, from his
commercial establishment.
13. Moreover, the complainant could also place on
record cogent documentary material, comprised in the ledger
books or books of account maintained, by him in his commercial
establishment, and, against the relevant lending entries, rather
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the valid signatures of the accused existing. However, even the
afore documentary evidence remained unadduced into
evidence. Therefore, the afore made conclusion acquires the
completest strength and vigour.
14. Analyzing from another angle, though, the
complainant has been able to prove, through Mark Y, which is
the statements of accounts appertaining to his bank, that
through cheques, a total sum of Rs.10 lakhs became
respectively disbursed to the accused and/or to his spouse.
However, mark-Y appertains to the years 2010 and 2011,
whereas, the extant cheque became issued in the year 2014.
Since, the complainant contends, that certain amounts became
disbursed, to the complainant, and, to his wife respectively
through cheques or through cash, and, the afore was to ensure
the accused, complying with his oral promise, to transfer the
land owned by the accused to the complainant. However, the
afore factum has been denied by the accused. In addition, with
respect to lendings in cash, to the accused, by the complainant,
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rather has been in the complainant's cross-examination,
disclosed to occur in the presence of witnesses, inasmuch, as, in
the presence of one Nilu, Kheru, Gathu Ram and Pratap, all of
whom are averred to be relatives of the complainant. However,
none of the afore became led into the witness box, for
supporting the factum of the handing overs of cashby the
complainant to the accused hence being in the presence of the
afore. Therefore, any amounts which came to be lent in cash,
by the complainant to the accused, cannot be construed to be
holding any tenacity rather the cheque amount is concluded to
be filled up, only upon the accused bonafidely believing the
complainant, that the lent grocery amounts to him was upto
Rs.15 lacs.
15. Though, the complainant has not, in his deposition,
made any reference that two other complaints being filed by
him against the accused. However, the accused in his testimony
has made a graphic disclosure, that apart from the dishonour of
the extant negotiable instrument, the complainant has instituted
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three cases. Consequently, the effect of the afore suppression
from the learned trial Court, does constrain, this Court, to draw
an adverse inference, against the complainant. The reason for
drawing the afore adverse inference, becomes well anchored, as
only upon placing on record all the afore complaints, instituted
against the accused by the complainant, and, also if they had
travelled upto the stage of the completest recording of
evidence(s) thereon, both oral as well as documentary, some
unearthings may have surged forth in display of the borrowings,
qua whereto, Ex.CW1/B become issued, and, would also hence
have ensured apposite emergences, qua the other complaints as
became instituted were also qua therewith hence by the
complainant against the accused. It appears, that the afore
unearthings became attempted rather to be aborted by the
complainant, given his failing to adduce all the afore material,
before this Court or before the learned trial Court. Therefore, it
appears that the complainant, has with respect to the same
entire borrowings, whether in cash or in kind, as made by the
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accused, from the complainant, rather has taken to institute
numerous complaints against the accused. Consequently, the
amount carried in the extantly dishonoured cheque, is, a
speciously filled amount.
16. For the afore reasons also this Court is constrained
to conclude that the accused is prima facie, taking to even
without maintaining the relevant books of account in his
commercial establishment, untenably strive to establish, that the
entire amount carried therein, appertains to discharge by the
accused of his legally and other enforceable contractual liability,
even when in respect thereof, no cogent material exists, on
record.
17. For the reasons which have been recorded
hereinabove, this Court holds that both the learned Courts
below have not appraised the entire evidence, on record, in a
wholesome and harmonious manner, apart therefrom, the
analysis of the material, on record, by both the learned Courts
below, hence, also suffers from a gross perversity or absurdity
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of mis-appreciation, and, non appreciation of germane thereto
evidence, on record.
18. Consequently, there is merit in the extant criminal
revision petition, and, it is allowed. Therefore, the judgments
impugned before this Court are set aside and quashed. In
sequel, the accused/petitioner is acquitted of the offences
punishable under Section 138 of the Negotiable Instruments Act.
All pending applications also stand disposed of. Records be
sent back forthwith
(Sureshwar Thakur)
Judge
3rd September, 2021.
(jai)
