Sh. Baldev Kumar vs Sh. Lachhami Chand Alias Laxmi ...
2022 Latest Caselaw 9315 HP

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      IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA




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                                                              Criminal Revision No. 42 of 2022

                         Date of Decision: 15.11.2022
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Sh. Baldev Kumar                                ....Petitioner.
                         Vs.

Sh. Lachhami Chand alias Laxmi Singh                                                                      .....Respondent.





Coram:
The Hon'ble Mr. Justice Ajay Mohan Goel, Judge
Whether approved for reporting?1

For the petitioner:                                           M/s Anup Rattan and Arsh Rattan,

                                                              Advocates.

For the respondent:                                           Mr. Rakesh Kumar Thakur, Advocate.


Ajay Mohan Goel, Judge (Oral):

By way of this revision petition, the petitioner has

challenged judgment, dated 29.11.2019, passed by the Court of learned

Additional Chief Judicial Magistrate, Nalagarh, District Solan, H.P. in

Criminal Complaint No. 13/3 of 2015, titled as Lachhami Chand alias Laxmi

Singh Vs. Baldev Kumar as also judgment dated 09.04.2021, passed by the

Court of learned Additional Sessions Judge, Nalagarh, H.P., District Solan,

H.P. in Criminal Appeal No. 15-NL/10 of 2021, titled as Baldev Kumar Vs.

Lachhami Chand alias Laxmi Singh, in terms whereof, the complaint filed

under Section 138 of the Negotiable Instruments Act, 1881 by the present

1 Whether the reporters of the local papers may be allowed to see the Judgment? No.

respondent was allowed by the learned Trial Court and the appeal preferred

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against the same by the present petitioner was dismissed by the learned

Appellate Court.

2. Brief facts necessary for the adjudication of present petition are

that the respondent/complainant filed a complaint under Section 138 of the

Negotiable Instruments Act, inter alia, on the ground that the accused was in

dire need of money and had approached him with a request to advance a

loan of Rs.2,40,000/-, which was advanced to him by the complainant. To

discharge the said liability, accused issued a cheque bearing No. 054699,

dated 28.11.2014 for an amount of Rs.2,40,000/- of Allahabad Bank,

Nalagarh, District Solan. When presented for encashment, said cheque was

dishonoured on the ground of "insufficient funds". Thereafter, a statutory

notice was issued to the accused, but as he failed to make good the amount

of cheque, hence the complaint. In terms of judgment, dated 29.11.2019, the

complaint was allowed by the learned Trial Court by holding that the

complainant had proved his case beyond the shadow of reasonable doubt

and the accused was guilty of commission of offence punishable under

Section 138 of the Negotiable Instruments Act. The accused was ordered to

undergo simple imprisonment for a period of one year and pay a fine of

Rs.4,80,000/- as compensation.

3. Feeling aggrieved, the accused preferred an appeal, which was

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dismissed by the learned Appellate Court in terms of judgment, dated

09.04.2021 by upholding the judgment of conviction passed by the learned

Trial Court.

4. Learned counsel for the petitioner has argued that the

judgments passed by both the learned Courts below are perverse as the

findings which have been returned therein are not borne out from the record

of the case. It has been argued before the Court that the conviction of the

petitioner under Section 138 of the Negotiable Instruments Act is not

sustainable in the eyes of law, for the reason that the learned Court below

erred in not appreciating the evidence of the accused that he had already

paid whatever amount was due to the complainant from him and therefore,

there was no legally payable liability. Accordingly, a prayer has been made

for setting aside the judgment and decree passed by the learned Court

below. No other point was urged.

5. The petition has been resisted by learned counsel for the

respondent/complainant, inter alia, on the ground that there was neither any

infirmity nor any perversity in the judgments under challenge and the findings

returned by the learned Courts below were duly borne out from the record of

the case. Learned counsel has argued that the complainant had duly proved

the issuance of cheque in issue by the accused to him and further the factum

of same being dishonoured when presented to the concerned Bank. He

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further submitted that it is also duly borne out from the record of the case

that despite issuance of statutory notice, as the amount was not made good

by the accused, the complainant was left with no option but to invoke the

provisions of Section 138 of the Negotiable Instruments Act, wherein, the

complainant had proved his case against the accused, whereas, the accused

was not able to prove his defence that nothing was payable to the

complainant. Learned counsel further submitted that otherwise also, in

exercise of its revisional jurisdiction, this Court is not to sit as an appellate

Court and re-appreciate the evidence and as the judgment of conviction has

been upheld by the learned Appellate Court and that too by passing a

reasoned judgment, in the absence of there being any perversity in the

judgments in issue, the petition being devoid of any merit be dismissed.

6. I have heard learned counsel for the parties and have also gone

through the judgments passed by the learned Courts below.

7. In order to prove his case, the complainant entered the witness

box as CW-1. He exhibited the dishonoured cheque as Ex. C-1 and memo

of dishonoured cheque was exhibited as Ex. C-2, demand notice is on record

as Ex. C-3 and postal receipt and acknowledgement are on record as Ex. C-

4 and Ex. C-5. From the perusal of the judgments, it is evident that the

accused has not denied his signatures upon the cheque. The defence of the

accused before the learned Court below was that he had already returned

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the amount which was taken by him and the cheque in isssue given by him

to the complainant was misused by him. Now, the defence which was taken

by the accused itself is self speaking that issuance of a cheque by him in

favour of the complainant was not disputed by him. That being the case, in

the absence of even an iota of evidence on record from which it could be

inferred that the accused had made good the payments which were due from

him to the complainant, the findings which have been returned by the learned

Trial Court cannot be faulted with, for the reason that the same are duly borne

out from the record of the case and otherwise also, as this Court finds no

irregularity or perversity in the judgments passed by the learned Courts

below, the revision petition being devoid of any merit is dismissed.

(Ajay Mohan Goel)

Judge November 15, 2022 (bhupender)