Himachal Pradesh High Court

Sh. Ram Chand vs Sh. Dhian Singh on 23 September, 2021

Bench: Sandeep Sharma

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 23rd DAY OF SEPTEMBER, 2021
                            BEFORE




                                                                  .
              HON'BLE MR. JUSTICE SANDEEP SHARMA





                       CRIMINAL REVISION NO. 36 of 2020

    Between:-





    SH. RAM CHAND, SON OF SH.
    JAI DEV, RESIDENT OF VILLAGE
    DHARA, P.O. GARSA, TEHSIL
    BHUNTER, DISTRICT KULLU,
    H.P., AGED 45 YEARS.





                                                        ......PETITIONER
    (BY MR. NAVEEN K. BHARDWAJ,
    ADVOCATE)

    AND


    SH. DHIAN SINGH, SON OF SH.
    DAULAT RAM, RESIDENT OF
    VILLAGE AND P.O. SAINJ, SUB
    TEHSIL SAINJ, DISTRICT KULLU,
    H.P.


                                                        ......RESPONDENT

    (MR. MAAN SINGH, ADVOCATE)






    Whether approved for reporting1? Yes.


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





                         ORDER

Instant criminal revision petition filed under Sections 397,

401 of Cr.P.C, lays challenge to judgment dated 21.12.2019, passed by

learned Sessions Judge, Kullu, District Kullu, H.P. in Criminal Appeal

No.37(51)/2019, titled Sh.Ram Chand vs. Sh. Dhian Singh, affirming

the judgment of conviction and order of sentence dated 22.08.2019,

passed by Chief Judicial Magistrate, Kullu, Lahaul and Spiti at Kullu, in

case No. 1071-1/2015, whereby court below while holding petitioner-

accused (hereinafter referred to as 'accused') guilty of having

committed an offence punishable under Section 138 of Negotiable

Instruments Act, (hereinafter referred to as 'Act') convicted and

sentenced him to undergo simple imprisonment for a period of six

months and to pay compensation to the tune Rs. 12,00,000/- to the

complainant.

2. Precisely, the facts as emerge from the record are that

respondent-complainant (hereinafter referred to as 'complainant')

instituted a complaint under Section 138 of the Act in the Court of

learned Chief Judicial Magistrate, Kullu, Lahaul and Spiti at Kullu,

alleging therein that he had received compensation on account of

acquisition of his house and land in the year 2015. In April, 2015,

accused approached him with the request to lend him Rs. 10 lac to run

the business. Complainant alleged that he on the request of accused

paid Rs.10 lac to the accused, who with a view to discharge his lawful

liability, issued cheque Ext. CW-1/B, dated 27.07.2015, amounting to

Rs.10 lac, payable at PNB, Bajaura Branch, in favour of the

complainant. However, fact remains that aforesaid cheque on its

presentation was dishonoured on account of 'insufficient funds' and

same was returned to him vide memo dated 01.08.2015, i.e. Ext. CW-

1/C. After receipt of aforesaid memo, complainant issued legal notice

Ext.CW-1/D to the accused asking him to make the payment good

within a period of 15 days, but since, he failed to make the payment

good within the time stipulated in the legal notice, he was compelled to

institute proceedings under Section 138 of the Act.

3. Complainant in support of his complaint, examined as

many as three witnesses, whereas, despite opportunity, accused failed

to lead any defence, but in his statement recorded under Section 313

Cr.P.C, he pleaded his innocence and took plea that he had only

borrowed Rs. 3 lac from the complainant and out of which he had

repaid Rs.1,70,000/- lac. He also stated that , he had given blank

cheque in question to the complainant as security, which was misused

by him. r

4. Learned trial court on the basis of pleadings as well as

evidence adduced on record by the complainant, held accused guilty of

having committed offence punishable under Section 138 of the Act and

accordingly convicted and sentenced him as per description given

hereinabove. Being aggrieved and dissatisfied with the aforesaid

judgment of conviction and order of sentence, accused preferred an

appeal in the Court of learned Sessions Judge, Kullu, District Kullu,

which also came to be dismissed vide judgment dated 21.12.2019. In

the aforesaid background, accused has approached this Court in the

instant proceedings, praying therein for his acquittal after setting aside

the judgments of conviction and order of sentence recorded by courts

below.

5. Vide order dated 14.1.2020, this Court while suspending

the substantive sentence imposed by courts below, directed the

accused to deposit balance compensation amount within a period of

four weeks, but fact remains that aforesaid order never came to be

complied with despite repeated opportunities granted by this Court and

as such, this Court has no option, at this stage, but to decide the

instant petition on its own merit.

6. Having heard learned counsel representing the parties

and perused the material available on record, this Court finds no

illegality and infirmity in the judgment of conviction and order of

sentence recorded by courts below and as such, no interference is

called for.

7. It is not in dispute that factum with regard to issuance of

cheque as well as signatures thereupon of accused has not been

denied by the accused, rather in his statement under Section 313

Cr.P.C, he has stated that he had only borrowed sum of Rs. 3 lac from

the complainant and out of which, he had paid Rs. 1, 70,00/-. Accused

has categorically stated in his statement under Section 313 Cr.P.C that

he had issued blank cheque as security to the complainant, but he has

misused the same. Since, issuance of cheque as well as signatures

thereupon are not disputed by accused, there is a presumption of

issuance of cheque in favour of complainant by the accused for

discharge of his lawful liability.

8. With a view to prove his case, complainant besides

stepping himself in the witness box also examined Somawati as CW-1

and Sh. Rahul Negi as CW-2. Complainant tendered his evidence by

way of affidavit Ext. CW-3/A, whereby he stated the case verbatim as

has been stated in the complaint filed under Section 138 of the Act.

While admitting that accused is brother-in-law (Behnoi) of his son-in-

law, this witness categorically denied that he used to lend money on

interest. He also denied that accused had only borrowed sum of Rs. 3

lac in the year 2015 and out of such money, he had repaid

Rs.1,70,000/-. This witness categorically stated that accused

borrowed sum of Rs. 10 lac from him and till date he has not repaid

single penny. This witness specifically denied suggestion put to him

that he had obtained blank cheque from the accused as security. He

also denied that he himself filled up rupees 10 lac on the blank cheque,

rather self-stated that accused had given cheque to him after filling it

well. This witness denied that he had not issued any notice to

accused.

9. CW-2, Sh. Rahul Negi, Assistant Manager deposed that

complainant Dhian Singh is having account in their bank. The cheque

Ex.CW1/B was submitted in the bank for collection, which was sent by

them for collection to PNB, but the said cheque was returned by the

PNB unpaid on account of insufficient funds in the account of the

accused with memo Ex.CW1/C. He deposed that statement of account

of complainant and copy of cheque returning register are Ex.CW2/A

and Ex.CW1/B respectively. In cross-examination this witness denied

that cheque Ex.CW1/B was not received for collection in the bank. He

also denied that memo Ex.CW1/C was also forged one.

10. In the case at hand, evidence led on record by the

complainant, if read in conjunction, it clearly suggests that accused

had issued cheque amounting to Rs. 10 lac to the complainant for

discharge of his lawful liability, but same was dishonoured on account

of 'insufficient funds'. It is also not in dispute that after receipt of

memo, Ext. CW-1/C, complainant issued legal notice Ext. CW-1/D,

which fact is substantiated by postal receipt placed on record Ext.CW-

1/E. However, aforesaid legal notice was refused to be received by

accused, as is evident from acknowledgment Ext. CW-1/F. At this

stage, Mr. Naveen K. Bhardwaj, learned counsel representing the

petitioner argued that since legal notice was issued one day after

expiry of statutory period of 30 days, issuance of statutory notice, if

any, has no relevance and on this sole ground, case of the complainant

deserves to be dismissed.

11. However, having carefully perused the aforesaid legal

notice Ext. CW-1/E, this Court finds that complainant issued notice on

31.08.2015, which was well within the statutory period of one month

from receiving information as to dishonouring of the cheque.

Information with regard to dishonouring of cheque was received by the

complainant on 1.8.2015 and on 30 th day of said information, legal

notice was issued to accused and as such, it cannot be said that legal

notice was issued beyond statutory period of 30 days.

12. Leaving everything aside, once factum with regard to

issuance of cheque as well as signatures thereupon are admitted by

accused, presumption as available under Section 118 and 139 of the

Act, is applicable in favour of complainant. No doubt, aforesaid

presumption is rebuttable, but for that purpose accused is to raise

probable defence either by leading some positive evidence or to refer

to the evidence led on record by the complainant. However, in the

case at hand, no probable defence has been raised by the accused to

rebut the presumption of issuance of cheque for discharge of lawful

liability by him in favour of complainant. Since, in the instant case,

factum with regard to issuance of cheque and signatures thereupon

stands duly admitted by accused, learned courts below rightly took no

cognizance of his statement recorded under Section 313 Cr.P.C that

cheque issued by him was towards security and not for the discharge

of his lawful liability.

13. Reliance in this regard is placed upon judgment rendered

by Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat,

(2019) 18 SCC 106, wherein, it has been held as under:

"18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court

proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly

extended him money for advancing it to the accused. This approach of

the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record

such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused- appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence.

19. In order to discharge his burden, the accused put forward the defence that in fact, he had had the monetary transaction with the said Shri Jagdishbhai and not with the complainant. In view of such a plea

of the accused-appellant, the question for consideration is as to whether the accused-appellant has shown a reasonable probability of existence of any transaction with Shri Jagdishbhai? In this regard, significant it is to notice that apart from making certain suggestions in

the cross-examination, the accused- appellant has not adduced any

documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp

paper was given to Shri Jagdishbhai and another factor relied upon is that Shri Jagdishbhai had signed on the stamp paper in question and not the complainant.

19.1 We have examined the statement of Shri Jagdishbhai as also the said writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant. 19.2 The said witness Shri Jagdishbhai, while pointing out his

acquaintance and friendship with the appellant as also with the

respondent, asserted in his examination-in-chief, inter alia, as under: "Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other.

The accused had necessity of money in his business, in my presence, had demanded Rs.22,50,000/- (Rupees twenty two lacs fifty thousandly) on temporary basis. And thereafter, the complainant from his family members by taking in piecemeal had given to the accused

in my presence. Thereafter, on demanding the money by the complainant, the accused had given seven (7) cheques to the complainant in our presence but such cheques being washed out in

rainy water and on informing me by the complainant I had informed to the accused. Thereafter, Rohitbhai had given other seven (7) cheques to the complainant in my presence and the deed was executed on Rs. 100/- stamp paper in there is my signature."

19.3 This witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross- examination, the witness stated as under:

"I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was

quarrel between me and the accused in the matter of payment of interest. It is not true that even after the payment of Rs. ten lacs and the huge amount of the interest in the matter of interest quarrel was made. It is not true that due to the reason of quarrel with the accused, in the cheques of the accused lying with me by making obstinate writing has filed the false

.

complaint through Shashimohan Goyanka. It is not true that no

financial dealings have taken place between the complainant and the accused. therefore I also the complainant both at the time of evidence the accused at what place, on what date at what time, the amount taken has not been able to make

clearly. (sic) It is not true that the blank stamp paper duly signed were lying in which obstinate writing has been made therefore the same has not been registered through sub registrar. It is not true that the dealings have been made between me and accused therefore there is my signature and the signature of the accused and the complainant has not

signed. It is not true that any types of dealings between the accused and the complainant having not been done in my presence therefore in my statement no clarification has been given. It is not true that the accused in my presence as mentioned in the complaint any cheque has not been given. It

is not true that I in collusion with the complainant to usurp the

false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that in support of the complaint of Shashimohan Goyanka is giving false statement."

19.4 The statement of Shri Jagdishbhai does not make out any case

in favour of the accused-appellant. It is difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of

bringing on record such material which could tilt the preponderance of probabilities in his favour.

19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit

numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under :

"Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the financial difficulties having been arised, I have taken Rs.22,500,000/- (Rupees twenty two thousand fifty thousand only- sic) from my group which are to be paid to Shashimohan Goyanka.

With reference to that today I have given seven (7) cheques of Corporation Bank, Alkapuri Branch bearing No. 763346 to 762252 amounting to Rs. 22,50,000/- (Rupees twenty two lacs fifty thousand only) Dates : (1) 01/4/08, (2) 01/05/08 (3) 01/07/08, (4) 01/08/08 (5) 01/10/08 (6) 01/11/08 (7) 01/12/08 the account of which is 40007.

Earliest these cheques were given but due to rainy water logging the said cheques having been washed out (7) cheques have again been given which is acceptable to me."

19.6 The fact of the matter remains that the appellant could not

deny his signatures on the said writing but attempted to suggest that

his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a

blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same

cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post- dated, starting from 01.04.2008 and ending at 01.12.2008. There appears absolutely no reason to discard this writing from

consideration.

19.7 One of the factors highlighted on behalf of the appellant is that the said writing does not bear the signature of the complainant but and instead, it bears the signatures of said Shri Jagdishbhai. We find

nothing unusual or objectionable if the said writing does not bear the signatures of the complainant. The said writing is not in the nature of any bi partite agreement to be signed by the parties thereto. It had

been a writing in the nature of acknowledgement by the accused- appellant about existence of a debt; about his liability to repay the

same to the complainant; about his having issued seven post-dated cheques; about the particulars of such cheques; and about the fact

that the cheques given earlier had washed away in the rain water logging. Obviously, this writing, to be worth its evidentially value, had to bear the signatures of the accused, which it does. It is not unusual to have a witness to such a document so as to add to its authenticity; and, in the given status and relationship of the parties, Shri Jagdishbhai would have been the best witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily against the accused-appellant.

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 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 r 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. 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.

16. Reliance was also placed on following judgments

i.e. K. Subramani v. K. Damodara Naidu (2015) 1 SCC 99,

Basalingappa v. Mudibasappa (2019) 5 SCC 418 and

Krishna Janardhan Bhat vs Dattatraya G. Hegde, (2008) 4

SCC 54, perusal of aforesaid judgments reveals that in all

the cases before Hon'ble Apex Court, transactions were of

huge amount and in all those cases, accused were able to

raise probable defence that the cheques were not issued in

discharge of legally enforceable liability. However, the

complainant has advanced only Rs.10 Lakh in the case at

hand, coupled with the fact there is no denial on the part of

the accused that the cheque does not bear his signatures, as

such, there is presumption in favour of complainant that the

cheque was issued for law.

17. 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."

18. r 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.

19. 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.