Himachal Pradesh High Court
Date Of Decision: 28.08.2024 vs Dilbag Singh on 28 August, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 461 of 2023
.
Date of Decision: 28.08.2024
_________________________________________________________________________
Shiv Kumar
.........Petitioner
Versus
Dilbag Singh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. Sunil Kumar, Advocate.
For the Respondent:
r Mr. Gurinder Singh, Advocate.
_________________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 397 read
with Section 401 Cr.P.C, lays challenge to judgment dated 18.07.2023
passed by the learned Sessions Judge, Una, District Una, H.P., in Criminal
Appeal No. 25 of 2023, affirming the judgment of conviction dated
05.01.2023 and order of sentence dated 06.01.2023, passed by the learned
Additional Chief Judicial Magistrate, Court No. I, Amb, District Una, H.P. in
criminal complainant No. 322-I-17/15, whereby the learned Court below,
while holding the petitioner-accused (hereinafter to be referred as
"accused") guilty of having committed offence punishable under Section
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138 of the Negotiable Instruments Act (in short the "Act"), convicted and
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sentenced him to undergo simple imprisonment for a period of six months
and pay compensation to the tune of Rs. 8,75,000/- to the respondent-
complainant (hereinafter the "complainant").
2. Precisely, the facts of the case, as emerge from the record are
that complainant instituted a complaint under Section 138 of the Act
before the competent Court of law, alleging therein that accused requested
him to advance him Rs. 1,00,000/- for starting his business. He alleged
that accused started the business of property dealing by taking shop on
rent at Una road Amb and again in the month of June, 2013 he requested
him to pay some more money enabling him to expand his business. He
alleged that accused assured him that he will give five marlas of land on
the National Highway between Amb to Pucca Paroh or return the money
with interest on or before 31.12.2014. He alleged that apart from Rs.
1,00,000/-, he also gave him Rs. 2,00,000/- to the accused by taking
pension loan. In the month of October, 2014, accused, while showing land
to the complainant further asked the complainant to pay Rs. 1,50,000/-
with the understanding that he would return the aforesaid amount as per
settlement. However, fact remains that neither land was given to the
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complainant nor he returned the money and with a view to discharge his
.
lawful liability, accused had issued cheque bearing No. 000004 dated
29.12.2014 amounting to Rs. 5,00,000/- drawn on HDFC Bank, Amb,
District Una, HP, but aforesaid cheque on its presentation was returned
vide memo dated 30.12.2014 with the remarks "Drawer signature
differs/Alteration require drawer authentication/Funds Insufficient". After
receipt of aforesaid memo from the bank concerned, complainant served
accused with a legal notice dated 17.01.2015 calling upon him to make the
payment good within the stipulated period, however, fact remains that
accused neither filed reply to the legal notice nor paid the amount and as
such, complainant had no option, but to initiate proceedings under Section
138 of the Act in the competent Court of law.
3. Learned trial Court on the basis of material adduced on record
by the respective parties, vide judgment dated 05.01.2023 & 06.01.2023,
held the accused guilty of his having committed offence punishable 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 learned Court below, accused preferred an
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appeal before the learned Sessions Judge, Una, District Una, H.P., but
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same was dismissed vide judgment dated 18.07.2023. In the aforesaid
background, petitioner has approached this Court in the instant
proceedings, praying therein to set-aside the judgment of conviction and
order of sentence recorded by the learned Court below.
5. Vide order dated 12.09.2023, this Court suspended the
substantive sentence imposed by the learned Court below subject to
petitioner's depositing 35% of the compensation amount and furnishing
personal bond in the sum of Rs. 50,000 alongwith one surety in the like
amount within a period of six weeks. Repeatedly matter came to be
adjourned, enabling the accused to comply with aforesaid order, but fact
remains that compensation amount in terms of order dated 12.09.2023
was not deposited. On 18.06.2024, this Court came to be apprised by
learned counsel for the accused that 50% of the compensation amount has
been paid and remaining amount shall be paid within a period of two
weeks. It also came to be stated before this Court that petitioner is ready
and willing to settle the matter with the complainant, and as such, this
Court, on the request of learned counsel for the accused adjourned the
matter, enabling him to file an application under Section 147 of the Act for
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compounding the offence. On 14.08.2024, this Court granted last
.
opportunity of one week's time to the petitioner to deposit the amount and
directed him to come present in Court today. Today neither the petitioner
has come present in Court nor he has imparted instructions, as has been
stated by learned counsel for the petitioner, and as such, this Court has no
option, but to decide the case on its own merits.
6. Having heard learned counsel for the parties and perused
material available on record vis-a-vis reasoning assigned in the impugned
judgment passed by learned Sessions Judge, Una, District Una, HP,
whereby judgment of conviction and order of sentence recorded by the
learned trial Court came to be upheld, this Court is not persuaded to agree
with Mr. Sunil Kumar, learned counsel for the petitioner, that learned
Courts below have failed to appreciate the evidence in its right perspective,
rather this Court finds that both the Courts below have dealt with each and
every aspect of the matter meticulously and there is no scope left for this
Court to interfere. Since factum with regard issuance of cheque as well as
signature thereupon never came to be refuted by the accused, both the
Courts below rightly invoked Sections 118 and 139 of the Act, which speak
about presumption in favour of holder of cheque that cheque in question
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was issued towards discharge of lawful liability. No doubt, aforesaid
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presumption is rebuttable, but to rebut such presumption, accused is
required to raise probable defence. However, in the instant case, despite
sufficient opportunity, petitioner failed to lead any evidence.
7. 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 is 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
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
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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
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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."
8. Son of the complainant with a view to prove his case examined
himself as CW1 and tendered his evidence by way of affidavit Ext.CW1/A,
thereby reiterating the contents of the complaint. He testified that
complainant has expired and he is having explicit knowledge of the
transactions. While stating that complainant and accused were having
friendly relations, this witness categorically deposed that accused had
requested the complainant to give him friendly loan of Rs. 1,00,000/-,
enabling him to start his business. He further deposed that accused after
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having started the business of property by taking shop on rent at Una road
.
Amb, again requested in the month of June, 2013 to give him some more
money. He deposed that accused offered to sell five marlas of land on the
National Highway between Amb to Pucca Paroh. He deposed that
complainant gave Rs. 2,00,000/- more to the accused by taking pension
loan and he also made accused tender receipt in writing on stamp paper of
Rs. 500/- on 10.06.2013. He deposed that in the month of October, 2014,
accused showed land to the complainant and told him that party is living
outside and he needs Rs. 1,50,000/- and as such, complainant again
advanced him Rs. 1,50,000/-. He deposed that on repeated requests,
complainant advanced sum of Rs. 5,00,000/- in total to the accused, who
despite promise neither sold land nor returned the money to the
complainant. He deposed that accused issued cheque bearing No. 000004
(Ext.C1) dated 29.12.2014 amounting to Rs. 5,00,000/- drawn on HDFC
Bank, Amb, District Una, HP, but aforesaid cheque on its presentation was
returned back vide memo dated 30.12.2014 Ext. C2 with the remarks
"Drawer signature differs/Alteration require drawer authentication/Funds
Insufficient". Cross-examination conducted upon afore witness, if is
analyzed in its entirety, nowhere suggests that accused was unable to
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extract anything contrary to what this witness stated in his examination-in-
.
chief. Interestingly, during cross-examination, suggestion came to be put-
forth to the complainant that cheque in question was issued as security.
Though aforesaid suggestion was specifically denied by the complainant,
but by putting aforesaid suggestion, complainant specifically admitted
factum with regard to his having issued cheque. While denying that
accused did not borrow money from his father, this witness admitted that
his father had not given Rs. 5,00,000/- in his presence, but self stated that
Rs. 2,00,000/- was given in his presence.
9. Careful perusal of cheque Ext. C1 clearly suggests that same was
issued for sum of Rs. 5,00,000/- on 29.12.2014, but same was
dishonoured vide return memos Ext. C2 & C3 with the remarks "Drawer
signature differs/Alteration require drawer authentication/Funds
Insufficient". Legal notice Ext. CW4 clearly reveals that complainant before
initiating proceedings under Section 138 of the Act afforded an opportunity
to the accused to make the payment good, but he despite having received
legal notice, which is evident from postal receipt Ext. C4, failed to make the
payment good. Neither he disputed the amount claimed by the complainant
in the legal notice nor he came forward to deposit the amount. Accused in
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his statement under Section 313 Cr.P.C stated that he had taken Rs.
.
50,000/- from the complainant and same was returned, but cheque issued
by him as a security was misused. However, aforesaid defence put-forth by
the accused never came to be probablized by leading cogent and convincing
evidence. Neither accused could point out anything from the pleadings as
well as evidence adduced on record by the complainant that he had only
taken Rs. 50,000/- from the complainant nor he could prove that cheque
allegedly issued by him as a security was misused.
10. By now it is well settled that dishonour of cheque issued as
security can also attract offence under Section 138 of the Negotiable
Instruments Act. Hon'ble Apex Court in case titled Sripati Singh v. State
of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on
28.10.2021, has held as under:
"16. A cheque issued as security pursuant to a financial
transaction cannot be considered as a worthless piece of paper
under every circumstance. 'Security' in its true sense is the state
of being safe and the security given for a loan is something
given as a pledge of payment. It is given, deposited or pledged to
make certain the fulfilment of an obligation to which the parties
to the transaction are bound. If in a transaction, a loan is
advanced and the borrower agrees to repay the amount in a
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specified timeframe and issues a cheque as security to secure
such repayment; if the loan amount is not repaid in any other
.
form before the due date or if there is no other understanding or
agreement between the parties to defer the payment of amount,
the cheque which is issued as security would mature for
presentation and the drawee of the cheque would be entitled to
present the same. On such presentation, if the same is
dishonoured, the consequences contemplated under Section 138
and the other provisions of N.I. Act would flow."
11. Needless to say, expression "Security cheque" is not a
statutorily defined expression in the Negotiable Instruments Act, rather
same is to be inferred from the pleadings as well as evidence, if any, led on
record with regard to issuance of security cheque. The Negotiable
Instruments Act does not per se carve out an exception in respect of a
"security cheque" to say that a complaint in respect of such a cheque would
not be maintainable as there is a debt existing in respect whereof the
cheque in question is issued, same would attract provision of Section 138
of the Act in case of its dishonour.
12. Having scanned pleadings as well as evidence adduced on
record by the complainant, this court finds that complainant
successfully proved all the ingredients of Section 138 of the Act.
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Admittedly, cheque issued by the accused towards discharge of lawful
.
liability was returned by bank concerned with the remarks "Drawer
signature differs/Alteration require drawer authentication/Funds
Insufficient". Since despite sufficient opportunity afforded by the
complainant by way of legal notice, accused failed to make the payment
good, complainant had no option, but to institute the proceedings under
Section 138 of the Act, which subsequently came to be allowed by both
the Courts below in view of evidence adduced on record by the
complainant.
13. 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
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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."
14.
another Versus
r to
True it is that the Hon'ble Apex Court in Krishnan and
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 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.
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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 reason
to interfere with the well reasoned judgments 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 criminal revision petition is dismissed
being devoid of any merit. The petitioner is directed to surrender 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.
August 28, 2024 (Sandeep Sharma),
(sunil) Judge
