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2022 Latest Caselaw 8747 HP

    IN    THE     HIGH     COURT       OF   HIMACHAL        PRADESH,            SHIMLA




                                                                 .
                       ON THE 21st DAY OF OCTOBER, 2022





                                       BEFORE





                    HON'BLE MR. JUSTICE SANDEEP SHARMA


                      CRIMINAL REVISION No.261 OF 2021





          Between:
          MAHESH KUMAR AGED ABOUT 48 YEARS,
          SON OF SHRI NAND LAL, RESIDENT OF
          HOUSE NO. 109/6 LOWER SAMKHETAR,

          MANDI TOWN, DISTRICT MANDI, H.P.

                                                                     ....PETITIONER
          (BY MR. R.L. CHAUDHARY
          ADVOCATE)


          AND

    1.    STATE BANK OF INDIA, BRANCH
          SUNDERNAGAR, THROUGH ITS BRANCH




          MANAGER, SHRI NARESH KUMAR





    2.    THE STATE OF H.P.
                                                                  ....RESPONDENTs
          (BY MR. ARVIND SHARMA,





          ADVOCATE, FOR R-1)

          (BY MR. NARENDER GULERIA,
          ADDITIONAL ADVOCATE GENERAL,
          WITH MR. SUNNY DHATWALIA,
          ASSISTANT ADVOCATE GENERAL, FOR
          THE STATE.)
    Whether approved for reporting?.




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                                               2




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




                                                                       .
                                          ORDER

Instant criminal revision petition filed under Section 397 of

Cr.PC, lays challenge to judgment dated 16.4.2021, passed by the learned

Additional Sessions Judge Sundernagar, District Mandi, HP, in Criminal

Appeal No. 161/15, affirming judgment of conviction and order of sentence

dated 12.5.2015, passed by the learned JMFC-2, Sundernagar, District

Mandi, H.P., in Criminal Complaint No.287-I/2010/139-III/2010, whereby

the learned trial Court while holding the petitioner-accused guilty of having

committed offence punishable under Section 138 of the Negotiable

Instruments Act (in short the "Act"), convicted and sentenced him to

undergo simple imprisonment for a period of six months and pay

compensation to the tune of Rs. 8,40,000/- to the complainant.

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

that accused availed house loan from the complainant Bank and with a

view to discharge his liability, issued cheque bearing No. 902254 dated

10.8.2010 amounting to Rs. 8,25,000/- but fact remains that aforesaid

cheque on its presentation to the bank concerned, was dishonoured. Since

petitioner-accused failed to make the payment good within the time

stipulated in the legal notice, respondent/complainant was compelled to

initiate proceedings before the competent Court of law under Section 138 of

.

the Act.

3. Learned trial Court on the basis of material adduced on record

by the respective parties, vide judgment dated 12.5.2015, held the

petitioner-accused guilty of having committed offence under Section 138 of

the Act and accordingly, convicted and sentenced him as per the

description given herein above.

4. Being aggrieved and dissatisfied with the aforesaid judgment of

conviction recorded by the court below, accused preferred an appeal in the

court of learned Additional Sessions Judge, Sundernagar, District Mandi

HP., which also came to be dismissed vide judgment dated 16.4.2021, as a

consequence of which, judgment of conviction recorded by the learned trial

Court came to be upheld. In the aforesaid background, present petitioner-

accused has approached this Court by way of instant proceedings, seeking

therein his acquittal after setting aside the judgment of conviction recorded

by the court below.

5. Vide order dated 21.10.2021, this Court suspended the

substantive sentence imposed by the court below subject to petitioner's

furnishing personal bonds in the sum of Rs. 50,000/-. Though aforesaid

order stands complied with, but thereafter on 7.4.2022, learned counsel for

the petitioner-accused apprised this Court that respondent-complainant

bank has already got the entire cheque amount legalized/released by way

.

of filing civil suit. He further stated that against the cheque amount of Rs.

8.00 lac, sum of Rs. 14,94,163/- already stands released in favour of the

respondent claimant bank. However, Mr. Arvind Sharma, learned counsel

for respondent No.1 after having received the instructions from the

complainant bank stated that no such recovery, as has been claimed, has

been effected till date. He further submitted that as per record, amount

more than Rs.13.00 lac is due from the petitioner. On 23.8.2022, learned

counsel for the petitioner got the matter adjourned, enabling him to have

instructions, whether petitioner is ready and willing to pay the entire

amount of compensation to the respondent bank on or before the next date

of hearing, failing which matter shall be heard finally on its own merits.

6. Today, learned counsel for the petitioner submitted that

petitioner has not come forward to impart instructions and till date, he has

not paid the amount and as such, matter be heard on its own merits.

7. Having heard learned counsel for the parties and perused the

material available on record vis-à-vis reasoning assigned in the judgments

passed by the courts below, this Court is unable to agree with the

contention of Mr. R.L. Chaudhary, Advocate, appearing for the petitioner

that both the courts below have not read the evidence in its right

perspective, as a consequence of which, great prejudice has been caused to

the petitioner-accused, rather this Court after having scanned the entire

.

evidence led on record by the complainant bank has no hesitation to

conclude that both the courts below have dealt with each and every aspect

of the matter very meticulously and have rightly arrived at a conclusion

that though accused had issued cheque for sum of Rs. 8,25,000/- towards

the discharge of lawful liability, but on account of insufficient funds,

cheque was dishonoured. Interestingly, there is no specific denial, if any,

on the part of the accused with regard to his having availed the loan facility

and thereafter issuance of cheque towards the discharge of liability.

8. Accused in his statement recorded under Section 313 Cr.PC,

though denied the incriminating evidence against him but nowhere denied

his liability. Neither he denied the issuance of cheque as well as signature

thereupon. Once there is no dispute with regard to issuance of cheque,

there is presumption in favour of the complainant in terms of provisions

contained in Section 118 and 139 of the Act that cheque was issued in

favour of the complainant for discharge of lawful liability. No doubt,

aforesaid presumption is rebuttable, but for that purpose, accused is/was

under obligation to raise probable defence. Probable defence could be

raised by the accused by referring to the documents adduced on record by

the complainant or by leading some cogent and convincing evidence.

However, in the case at hand, accused despite ample opportunities, failed

to lead the evidence in defence. However, in the case at hand, petitioner-

.

accused has not been able to raise the probable defence, rather he has

categorically admitted his liability. Though petitioner before this Court

attempted to carve out a case that since respondent bank has already

obtained decree of more than Rs. 14.00 lac towards the amount, which is

otherwise being sought to be realized/released in the instant proceedings

under Section 138 of the Act on account of dishonouring of cheque issued

by the petitioner accused, but as has been observed herein above, no

cogent and convincing evidence ever came to be placed on record to prove

the realization of aforesaid money, if any, by way of the civil suit. Though

Mr. Arvind Sharma, learned counsel for the respondent admitted that suit

was filed by respondent bank for realization of loan amount and same was

decreed for sum of Rs. 9,10,792/- with interest @9.5%, but till date,

aforesaid amount has not been realized. He further submitted that

execution of the decree as detailed herein above is still pending

adjudication and as such, it cannot be said that amount sought to be

recovered by way of proceedings under Section 138 of the Act stands

already recovered.

9. In the case at hand, complainant with a view to prove its claim,

examined CW1 Sh. Naresh Kumar, Manager of the SBI, Sundernagar, who

deposed that the accused had issued cheque Ext.CW1/A amounting to Rs.

8,25,000/- in favour of the complainant bank in lieu of house loan, which

.

was dishonoured on account of insufficient funds vide memo Ext.CW1B.

He further stated that complainant bank had issued one legal notice

Ext.CW1/D to the accused through its counsel. With a view to prove the

contents of the legal notice, aforesaid witness also tendered postal receipts

and acknowledgement card of notice Ext.CW1/C and CW1/D, respectively.

He stated that accused replied to the aforesaid legal notice vide reply

Ext.CW1/F. He stated that accused has not repaid any amount of the

loan facility availed by him.

10. Cross-examination conducted upon this witness, if perused in

its entirety, nowhere suggests that opposite party was able to extract

something contrary to what he stated in the chief. In his cross-

examination, this witness admitted that neither cheque Ext.CW1/A was

given to him by the accused nor he has applied loan from the bank during

his tenure. He also admitted that notice Ext.C1/D was not sent to the

accused in his presence. Aforesaid admission, if any, made by Mr.

Naresh Kumar, Manager of the bank, is of no consequence/relevance,

because liability has been already admitted by the accused and he had

replied to the legal notice issued by the respondent bank. Though

opportunity was given to the accused to lead evidence in defence, but he

failed to lead any evidence. Since in the case at hand, respondent bank

successfully proved all the ingredient of Section 138 of the Act, as has

.

been discussed herein above, no illegality can be said to have been

committed by the courts below while holding the petitioner-accused guilty

of having committed offence punishable under Section 138 of the Act and

as such, same has been rightly upheld by the courts below.

11. 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 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."

12. Having carefully scanned the entire evidence available on

record, this Court is convinced and satisfied that complainant successfully

proved on record by leading cogent and convincing evidence that cheque in

question were issued by accused towards discharge of his lawful liability

and he has further successfully proved that cheque issued by the accused

.

on its presentation to the bank concerned was returned on account of

insufficient funds. Hence, it cannot be concluded that courts below have

committed any illegality and infirmity while holding accused guilty of

having committed offence punishable under Section 138 of the Act.

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."

13. 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.

14. 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 rmiscarriage 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.

15. 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.

16. 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. Interim direction, if any, stands

vacated. Pending applications, if any, also stand disposed of.

    21st October, 2022                                    (Sandeep Sharma),
         (manjit)                                             Judge




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