Satyaaveer Singh vs Downloaded On - 31/01/2022 ...
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          IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                   ON THE 10TH DAY OF SEPTEMBER, 2021

                                     BEFORE

                 HON'BLE MR. JUSTICE SANDEEP SHARMA




                                                                   .

                      CRIMINAL REVISION NO. 1 OF 2020


    Between:-





    SATYAAVEER SINGH
    S/O SH. MAHAVEER SINGH,
    R/O SLAUGHTER HOUSE BUILDING,
    NEAR P.S. DHALLI,





    TEHSIL AND DISTT. SHIMLA, HP.
                                                                 ... PETITIONER
    (BY MR. MOHAR SINGH, ADVOCATE)

    AND

    CHOTTE LAL ALIAS CHOTTA LAL,

    R/O SH. RAMADHAR,
    R/O SAHNI NIWAS, NEAR TUNNEL,
    DHALLI, TEHSIL AND DISTT., SHIMLA
    HP


                                                             .. RESPONDENTS

    (MR. LAKSHAY THAKUR,
    ADVOCATE)




    Whether approved for reporting: Yes.





    This petition coming on for orders this day, the court passed the following:





                                   O R D E R

Instant Cr. Revision Petition filed under S.397 read with S.482

CrPC lays challenge to judgment dated 3.10.2019, passed by learned

Additional Sessions Judge-II, Shimla in Cr. Appeal No. 10/S-10/2019

affirming judgment and order of conviction dated 17.1.2019/19.1.2019,

passed by learned Chief Judicial Magistrate, Shimla in Cr. Complaint No.

5-3/2017/2016, whereby learned court below, while holding petitioner-

accused guilty of having committed offence punishable under S.138 of the

Negotiable Instruments Act, convicted and sentenced him to undergo

rigorous imprisonment for three months and pay compensation of Rs.

.

1,70,000/- to the respondent-complainant.

2. Precisely, the facts of the case, as emerge from the record, are

that complainant instituted a complaint under S.138 of the Act in the court

of learned Chief Judicial Magistrate, Shimla, District Shimla, alleging

therein that accused, who was well known to him and had cordial

relations with him, used to borrow money from him from time to time.

Complainant alleged that in total he lent sum of Rs.1,40,800/- to the

accused. Accused with a view to discharge his aforesaid liability, issued

cheque bearing No.888650 dated 1.1.2016(Ext.CW-1/A), drawn on

Punjab National Bank, Sanjauli, but aforesaid cheque on its presentation

was dishonorued on account of insufficient funds in the account of the

accused. vide memo Exhibit CW-1/B dated 9.3.2016. On 18.3.2016,

complainant sent a legal notice, Exhibit CW-1/C, advising accused to

make good the payment within 15 days of receipt of notice, but since

accused failed to make the payment good within the time stipulated in

legal notice, complainant was compelled to institute proceedings under

S.138 of the Act.

3. Learned trial Court subsequently on the basis of pleadings and

evidence led on record by respective parties, held the accused guilty of

having committed offence punishable under S.138 of the Act and

accordingly convicted and sentenced him as per description given above.

4. Being aggrieved and dissatisfied with aforesaid judgment and

order of conviction recorded by learned trial Court, accused preferred an

appeal before learned Additional Sessions Judge-II, Shimla but same

was also dismissed on 3.10.2019. In the aforesaid background, accused

.

has approached this court in the instant proceedings, praying therein for

his acquittal after setting aside judgments and order of conviction

recorded by learned courts below.

5. Having heard learned counsel for the parties and perused

material available on record, this court finds that though accused in his

statement recorded under S. 313 CrPC, totally denied the factum with

regard to issuance of cheque rather, stated that he used to take articles

on credit basis from Kiryana shop of the complainant. In his statement

recorded under S.313 CrPC, complainant also claimed that the

complainant himself had taken loans from various banks as such he was

not in position to lend any loan to him. However, accused while deposing

as DW-3, admitted the factum with regard to issuance of cheque and

claimed that in July, 2015, he had purchased Karyana articles form

complainant amounting to Rs.12,000/-, out of which 7,000/- was paid in

September, 2015 and qua remaining amount, he handed over blank

cheque to the complainant. As per accused, he had paid price of Karyana

articles, but the complainant did not return the cheque and misused the

same. In his cross-examination accused admitted that the cheque was

handed over to complainant and it was signed by him. If the cross-

examination of accused (DW-3), is perused in its entirety,, factum with

regard to issuance of cheque and his signatures thereupon stand duly

proved. Since factum with regard to issuance of cheque stands duly

established on record, there is presumption under Ss.118 and 139 of the

Act in favour of the complainant that the cheque in question was issued

for discharge of legally enforceable liability by the accused.

.

6. No doubt, aforesaid presumption is rebuttable one but for that

purpose, accused is required to raise probable defense either by leading

positive evidence in this regard or by referring to evidence led on record

by complainant. In the case at hand, material available on record nowhere

suggests that the accused was able to rebut the presumption by raising

probable defence, rather, accused took contradictory pleas as have been

taken note above. In his statement recorded under S.313 CrPC, accused

denied factum with regard to issuance of cheque but during his cross-

examination, though he admitted factum with regard to issuance of

cheque but claimed that it was only issued for sum of Rs.5,000/- that too

on account of articles purchased by him from Karyana shop of the

complainant. Inconsistencies in the defence of accused are not sufficient

to rebut the presumption rather, on account of this, case of accused is

bound to fail.

7. In the case at hand, complainant by leading cogent and

convincing evidence successfully proved on record that cheque

amounting to Rs.1,40,800/- was handed over to him by accused for

discharge of his legally enforceable liability and on presentation said

cheque was dishonoured on account of insufficient funds. Factum with

regard to presentation of cheque and return thereof vide Exhibit CW-1/B

stands duly proved on record. Similarly this court finds that the

complainant before instituting complaint under S.138 of Act served the

accused with legal notice, Ext. CW-1/C and service thereof upon accused

stands proved as is evident from postal receipts Exts. CW-1/D and CW-

1/E as well as acknowledgements Exts. CW-1/F and CW-1/G.

.

8. Interestingly, in the case at hand, accused who had taken

contradictory pleas also made an endeavour to set up a case that since

complainant had taken loans from various banks, he had no capacity to

advance him loan that too to the tune of Rs.1,40,800/- but such plea of

accused never came to be proved in accordance with law, rather

evidence led on record by him clearly proves that the complainant, who is

a proprietor of M/s Mohit Daily Needs was having Cash Credit Limit to the

tune of 5.00 Lakh in UCO Bank Dhalli..

9. DW-1 Gaurav Sharma, an official of UCO Bank Dhalli fairly

admitted factum with regard to facility of cash-credit limit to the tune of

Rs.5.00 Lakh availed by the complainant. Above named witness proved

the statement of account with effect from 1.4.2015 to 31.3.2016, perusal

whereof reveals that the complainant had drawn Rs.2,96,792 on 2.7.2015

and another sum of Rs.1,97,818/- was credited from HDFC Mumbai in the

account of complainant. This witness in cross-examination admitted that

on 1.10.2015, Rs.1,50,000/- was drawn by complainant from his account.

10. DW-2 Sunil an official of HDV Finance Services Ltd. Tara Hall,

while admitting that complainant is having account No.1144703, deposed

that complainant had taken loan but his loan account was closed on

4.10.2018. In his cross-examination this witness stated that total loan

was Rs.2,10,000/- and same has been repaid.

11. Accused himself entered into witness box as DW-3 and stated

that he is a taxi operator by profession. He admitted that in July, 2015, he

purchased Karyana articles from the shop of the complainant, to tune of

Rs., 12,000 out of which, Rs.7000 was paid in September, 2015 and qua

.

remaining amount, he had handed over blank signed cheque to the

complainant. Though he had paid the amount to the complainant, but the

complainant, did not return the cheque and misused the same. In his

cross-examination, accused denied that he was to pay Rs.1,40,800 to the

complainant but voluntarily stated that only Rs.5,000 was to be paid. He

admitted that he had received legal notice and signatures on Exhibits CW-

1/F and CW-1/G are his.

12. Having carefully perused the entire evidence led on record by

accused, this court has no hesitation to conclude that the accused

miserably failed to raise probable defence and rebut the presumption of

issuance of cheque in favour of the complainant.

13. Though, there is no denial, if any, on the part of the accused

that he had not issued any cheque but even otherwise careful perusal of

evidence led on record by the complainant reveals that he successfully

proved all the ingredients of Section 138 of the Act and as such, no

illegality and infirmity can be said to have been committed by the learned

Courts below while holding petitioner-accused guilty of having committed

offence punishable under Section 138 of the Act.

14. Section 139 of the Act provides that 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, or any debt or other liability. Similarly, Section 118 of the Act

provides that unless contrary is proved , that the holder of the cheque

received the cheque in discharge, in whole or in part, of a debt or liability.

True, it is that to rebut aforesaid presumption accused can always raise

.

probable defence either by leading some positive evidence or by referring

to the material, if any adduced on record by the complainant. But in the

case at hand, accused has miserably failed to raise probable defence

much less sufficient to rebut the presumption applicable in favour of the

complainant under Section 118 and 139 of the Act.

15. 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 r 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 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."

16. 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."

.

17. 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.

18. 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 Mr. Singh, 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.

19. 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.

20. Accordingly, the present revision petition is dismissed being

devoid of any merit. The petitioner is directed to surrender himself before

the learned trial Court forthwith to serve the sentence as awarded by the

learned trial Court, if not already served. Pending applications, if any, also

.

stand disposed of.

                                               (Sandeep Sharma)
                                                    Judge
     September 10, 2021
          (Vikrant)




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