Shailza Huddone (Sain) vs Bal Krishan Rawat
2023 Latest Caselaw 1922 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MMO No.94 of 2020 Decided on: 7th March, 2023

------------------------------------------------------------------------------------- Shailza Huddone (Sain) .....Petitioner

.

                                                   Versus





    Bal Krishan Rawat                                             .....Respondent

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Coram Ms. Justice Jyotsna Rewal Dua Whether approved for reporting? 1 Yes.

For the Petitioner: Mr. B.N. Sharma, Mr. Vinod Sharma

and Ms. Mamta Bhatwan, Advocates.

For the Respondent: Mr. Janesh Gupta, Advocate.

------------------------------------------------------------------------------------ Jyotsna Rewal Dua, Judge

The petitioner is accused in the complaint

instituted by the respondent under Section 138 of the

Negotiable Instruments Act (in short 'N.I. Act'). She has

invoked the restrictive jurisdiction of this Court under

Section 482 of the Code of Criminal Procedure (Cr.PC) for

quashing of this Complaint bearing No.83-3 of 2015 (Bal

Krishan Rawat Versus Shailza Huddone) pending before the

learned Judicial Magistrate 1st Class, Jubbal, District

Shimla.

2. Facts in brief:-

2(i). The respondent preferred complaint under

Section 138 of the Act on 06.03.2013. Petitioner was

Whether reporters of print and electronic media may be allowed to see the order?

accused therein. The averments in the complaint are that

the respondent/complainant is Agriculturist and

Horticulturist by profession. In September, 2011, the

respondent gave a sum of Rs.50 Lakh to help out the

.

husband of the petitioner. The amount was lent on loan to

petitioner's husband in order to help him to take apple

orchard on contract basis in District Kinnaur. The

complainant was promised return of the loan amount by the

petitioner within a couple of months. The respondent/

complainant had accordingly lent Rs.50 Lakh to the

petitioner. For discharging this liability, the petitioner/

accused issued post-dated Cheque bearing No.368023,

dated 30.10.2012, for Rs.50 Lakh drawn from State Bank of

India, Shimla of a particular savings bank account in favour

of the respondent/complainant.

2(ii). It was further stated in the complaint that the

cheque was presented by the complainant in the Bank,

however, it was dishonoured by the Bank on 27.12.2012 for

want of sufficient funds. Memo in this regard was issued by

the Bank to the respondent/complainant on 02.01.2013.

After completing necessary codal formalities, the complaint

was preferred by the respondent on 06.03.2013.

3. The petitioner/accused seeks quashing of the

proceedings on the ground that the complainant has not

been able to disclose the source of funds, out of which the

amount under cheque was alleged to have been loaned out

to her. It has been emphasized by learned counsel for the

petitioner/accused that the respondent/complainant was

.

not in a position or capacity to lend loan amount of

Rs.50 Lakh, as alleged in the complaint. That provisions of

Section 118 of the Act have not been complied with

inasmuch as the reason for lending the alleged loan amount

and the requisite meticulous details thereof have not been

mentioned in the complaint. For these reasons, prayer has

been made for quashing the complaint made under Section

138 of the Act.

Opposing the prayer, learned counsel for the

respondent/complainant submitted that the complaint was

instituted by the respondent during the year 2013,

whereafter, the petitioner/accused successfully evaded

service and eventually non-bailable warrants were issued

against her by the learned Trial Court during the year 2019.

At that time, the petitioner/accused preferred Cr.MMO

Nos.187 and 188 of 2019 for quashing of non-bailable

warrants issued against her by the learned Trial Court.

Since the petitioner/accused undertook to appear before the

learned Trial Court, therefore, non-bailable warrants issued

against her were ordered to be recalled in terms of the

decisions dated 10.09.2019 rendered in the aforesaid

Cr.MMOs. Learned counsel for the respondent/complainant

further contended that the petitioner/accused is yet to lead

her evidence. Her contentions are to be examined by the

.

learned Trial Court on the basis of evidence to be adduced

by her. That the arguments advanced for the petitioner/

accused at this stage are premature. Prayer was accordingly

made for dismissal of the petition.

4. Having heard learned counsel on both sides, I

am not inclined to exercise the jurisdiction under Section

482 Cr.PC in favour of the petitioner. This is for the

following reason:-

It is well settled that Section 482 Cr.PC endows

restrictive jurisdiction, which has to be exercised in

accordance with law based upon the facts scenario of each

case.

In the instant case, the petitioner/accused has

not disputed that the cheque in question was issued by her.

Hon'ble Apex Court in 2022 (3) Crimes 343 (P. Rasiya

Versus Abdul Nazer and another) has held that in terms

of Section 139 of the Negotiable Instruments Act, 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 discharge, in whole or in part, of any debt or

other liability. Once the initial burden is discharged by the

complainant that the cheque was issued by the accused and

the signature and issuance of the cheque is not disputed by

the accused, in that case, onus will shift upon the accused

.

to prove the contrary that the cheque was not for any debt

or other liability. The presumption under Section 139 of the

Negotiable Instruments Act is a statutory presumption. It

will be appropriate to extract the relevant paragraph from

the judgment:-

"7. Feeling aggrieved and dissatisfied with the judgment and orders passed by the Appellate Court affirming the conviction of the accused under Section 138 of the N.I.

Act, the accused preferred three different Revision

Applications before the High Court. By the impugned common judgment and order, the High Court has reversed the concurrent findings recorded by both the courts below and has acquitted the accused on the ground that, in the complaint, the Complainant has not

specifically stated the nature of transactions and the source of fund. However, the High Court has failed to note the presumption under Section 139 of the N.I. Act. As per Section 139 of the N.I. Act, 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 discharge, in whole or in part, of any debt or other liability. Therefore, once the initial burden is discharged by the Complainant that the cheque was

issued by the accused and the signature and the issuance of the cheque is not disputed by the accused, in that case, the onus will shift upon the accused to prove the contrary that the cheque was not for any debt or other liability. The presumption under Section 139 of the N.I. Act is a statutory presumption and thereafter, once it is presumed that the cheque is issued in whole or in part of any debt or other liability which is in favour of the Complainant/holder of the cheque, in that case, it is for the accused to prove the contrary. The aforesaid has not been dealt with and considered by the High Court. The High Court has also failed to appreciate that

the High Court was exercising the revisional jurisdiction and there were concurrent findings of fact recorded by the courts below."

In the backdrop of above legal position, the

contention of the petitioner/accused that the cheque was

.

not issued by her in discharge of any debt is to be proved by

her by leading cogent evidence. The petitioner has neither

disputed the issuance of the cheque nor her signatures on

the cheque. Therefore, no case is made out for exercise of

jurisdiction under Section 482 Cr.PC for quashing the

complaint.

For all the aforesaid reasons, I find no merit in

the instant petition. The same is accordingly dismissed

alongwith pending miscellaneous application(s), if any.

Parties, through their learned counsel, are

directed to appear before the learned Trial Court on

29.03.2023.

                                                   Jyotsna Rewal Dua
    March 07, 2023                                       Judge





         Mukesh