Gautam Thakur vs Sonam Angmo
2023 Latest Caselaw 2213 HP

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           IN THE HIGH COURT OF HIMACHAL PRADESH
                           SHIMLA

                                    Cr.Appeal No. 146 of 2022
                                    Date of Decision: March 14, 2023




                                                                           .

    Gautam Thakur                                                            ...Appellant.





                                             Versus

    Sonam Angmo                                                            ..Respondent.





    Coram:
    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.

    Whether approved for reporting?1

    For the Appellant:              Mr.Maan Singh, Advocate.

    For the Respondent:             Mr.Rohit, Advocate,                 Mr.Sumit        Sood,
                                    Advocate.



    Vivek Singh Thakur, J (Oral)

This appeal has been preferred by complainant

Gautam Thakur, against respondent Sonam Angmo, assailing

dismissal of complaint filed under Section 138 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as 'N.I. Act') vide

judgment dated 29.03.2022, passed by Judicial Magistrate First

Class, Manali, District Kullu, H.P., in Complaint No.573 of 2015,

titled as Gautam Thakur vs. Sonam Angmo.

2. Complainant Gautam Thakur is son of respondent

Sonam Angmo. He had preferred complaint against his mother on

account of dishonour of cheque bearing No.369398 dated

1 Whether reporters of the local papers may be allowed to see the judgment?

09.06.2015 amounting to `3,00,000/- allegedly issued by

respondent drawn on her account maintained in Punjab National

Bank Branch, Manali.

.

3. It is claim of the complainant that his mother is living

separately and she was owing a sum of `3,00,000/- towards him

and in order to discharge her liability she issued aforesaid cheque

in his favour, and on presentation of cheque in the bank, same was

returned unpaid on 10.06.2015 with remarks "Account Closed".

4. According to complainant, he, thereafter, demanded

the said amount from the respondent, but she avoided it despite

repeated requests, and even after demand raised vide Demand

Notice dated 12.06.2015. Whereupon, complaint was preferred by

him.

5. After notice of accusation put to the respondent, trial

was commenced and complainant examined himself as CW-1 and

after filing affidavit in examination-in-chief Ex.CW.1/A, he proved

cheque Ex.CW.1/B, dishonour memos Ex.CW.1/C, Ex.CW.1/D, legal

notice Ex.CW.1/E, postal receipt Ex.CW.1/F and acknowledgement

receipt Ex.CW.1/G.

6. Respondent has examined 6 witnesses to rebut the

case of the complainant. It is also noticeable that a witness Sonam

Chhering has been examined twice, i.e. on 16.12.2018 and

21.09.2019. On 16.12.2018, he was examined as DW.4 but on

further examination on 21.09.2019 he was again assigned number

as DW.7 and, therefore, Serial Numbers assigned to the witnesses

up to DW.7. Whereas, only 6 witnesses have been examined on

behalf of the respondent.

7. In cross-examination, complainant has admitted that

.

his mother, is residing in Top Floor of Hotel Monarch Regency and

his younger brother Suraj is also residing separately. According to

case of the complainant, his mother approached him in May 2015

demanding a sum of `10,00,000/-, but she borrowed only a sum of

`3,00,000/- from him. He had claimed that he is owner of

Restaurant Chopstick, Hotel Monarch and Monarch Regency and his

annual income is `16,00,000/- from his business.

r Whereas, his

mother is illiterate and she did not know how to write and read, but

she had filled in cheque herself. He has also admitted that

Chopstick Restaurant and Hotel Monarch were existing over the

joint property owned by him and his younger brother, with

qualification in self statement that as per family settlement, he has

relinquished his share.

8. It is also pertinent to notice that he (complainant) has

admitted that he had opened the account of his mother in Punjab

National Bank Manali and he had withdrawn money from the bank

account of his mother from Punjab National Bank Manali and

further that he had not shown the amount given to his mother in

his Income Tax Return.

9. It has also come in his evidence in cross-examination

that mother and younger brother of complainant have filed a Civil

Suit against him and his sister has also filed a separate Suit against

him. He had also filed a Civil Suit against his brother-in-law

(sister's husband) for dishonour of cheque amounting to

`15,66,000/- and the said complaint was dismissed on 04.04.2015.

10. Complainant has also admitted that his mother had

.

filed FIR dated 15.05.2015 against him and also complaint in State

Women Cell in the year 2013. Further that, she had also filed case

against his brother for `7,05,000/-. He has denied making payment

to Tata Finance Limited and Manali Computers from the account of

his mother.

11. Complainant has also admitted that he had purchased

furniture from Ashoka Furniture, but he did not remember that

payment of the said furniture was made through cheque. He has

denied that he was operating bank account of his mother and he

was in possession of her cheque book.

12. DW.2 Tejinder Sharma working at Manali Computers

has been examined by respondent to prove the fact that cheque

Nos.355124 and 355125 dated 28.01.2009 issued for payment

against purchase of 18-20 computers by Gautam were encashed by

Manali Computers. This witness has expressed his ignorance about

the fact that cheques were belonging to the account of respondent.

However, DW.1 Sher Singh, Manager Punjab National Bank, Branch

Manali, has proved on record account of respondent Angmo

Ex.DW.1/A to substantiate plea of respondent that the aforesaid

cheques were issued by respondent Sonam Angmo and encashed

from her account. He has further proved that account of

respondent was closed since the year 2014. He has also proved on

record that payments to Tata Finance Company Ltd., Ashoka

Furniture and Manali Computers were made from the account of

respondent.

13. DW.3 Suraj is brother of complainant and son of

.

respondent. He has deposed that one bank account of his mother

in Punjab National Bank Branch Manali was opened by complainant

and was being operated by him and cheque books of his mother

were also being used by complainant. This deposition of this

witness has not been questioned in his cross-examination or

rebutted by leading any other evidence amounting to admission in

version of this witness on behalf of complainant.

14. DW.5 Rakesh has proved purchase of furniture for

Hotel of complainant from Ashok Furniture and payment thereof

through cheques referred in document Ex.DW.5/A. Encashment

whereof has also been proved by DW.1 Sher Singh in statement of

account Ex.DW.1/A.

15. DW.6 (DW.1) Sonam Chhering has proved on record

copy of Income Tax Return Ex.DW.6/A filed by complainant for the

Financial Year 2015-2016 (Assessment Year 2016-2017), which

indicates that income of complainant as shown in Income Tax

Return during that year was `1,80,000/-.

16. DW.7 Kehar Singh has proved on record Rapat No.27

dated 01.02.2016 (Ex.DW.7/A).

17. It is admitted fact that complainant has filed two

complaints for dishonour of two cheques alleging that same were

issued by his mother Sonam Angmo amounting to `3,00,000/-

each, i.e. Cheque Nos.369387 dated 08.06.2015 and 369398 dated

09.06.2015, drawn at Punjab National Bank, Manali. Both cheques

were presented by him in the same bank and were returned unpaid

with report that account was "closed" vide memo dated

.

10.06.2015. In both complaints, it has been claimed by the

complainant that a sum of `3,00,000/- was borrowed by his mother

from him in May 2015 and, therefore, she had issued cheques for

repayment thereof. This fact itself creates doubt about veracity of

version of the complainant as it is his case that his mother

borrowed only `3,00,000/-. If there was no occasion for respondent

to issue two cheques, one on 08.06.2015 and another on

09.06.2015. It is not case of the complainant that first cheque was

dishonoured and thereafter respondent issued another cheque.

Both cheques were returned by the bank on one and the same day

i.e. on 10.06.2015. Complaint filed regarding another cheque was

registered as Complaint No.574 of 2015. It has also been

dismissed on 29.03.2022 by Judicial Magistrate First Class, Manali

and dismissal thereof has been assailed by the complainant by

filing another Criminal Appeal No.145 of 2022, which has been

dismissed vide separate judgment passed in today's date.

18. From the material placed on record, respondent has

successfully rebutted the presumption under Sections 118 and 139

of N.I. Act as sufficient, cogent and reliable material has been

placed on record by leading convincing evidence that complainant

had concocted a story of borrowing `3,00,000/- from him by his

mother in order to settle the score with her and other family

members to pressurize them for ulterior motive as it has come on

record and also in evidence as well as in statement of the

complainant that he was maintaining and operating account of his

mother and payments related to his business were made from the

.

said account. Complainant has also admitted that his mother is

illiterate and does not know writing and reading, which

substantiates the plea of respondent that these cheques were

never issued by her but the cheque book being used by the

complainant which was misused by him.

19. I have gone through the reasoning assigned by the

Trial Court for dismissing the complaint. I do not find any illegality,

irregularity or perversity in the same, rather evidence on record

has been appreciated in its right perspective. Therefore, I do not

find any reason warranting interference in the impugned judgment.

20. Accordingly, appeal is dismissed being devoid of merit,

so also pending application(s), if any. Bail bonds furnished by the

accused are discharged.

Record of the trial Court be sent back.

(Vivek Singh Thakur),

Judge.

March 14, 2023 (Purohit)