Himachal Pradesh High Court

Deepak Verma vs Bansi Ram & Another on 8 July, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.77 of 2022 Date of Decision: 08.07.2024

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Deepak Verma .......Petitioner

Versus

Bansi Ram & another ... Respondents _______________________________________________________ Coram:

Hon'ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes.

For the Petitioner:

Mr. Vipin Pandit, Advocate.

For the Respondents: Mr. Suneet Goel, Advocate, for respondent No.1.

Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals, for respondent No.2/State.

_______________________________________________________ Sandeep Sharma, Judge(oral):

Instant Criminal Revision petition filed under Section 397

read with Section 401 of the Code of Criminal Procedure, lays

challenge to judgment dated 08.12.2021 passed by learned Sessions

Judge, Solan, District Solan, H.P., in Criminal Appeal No.13-S/10 of

2020/19, affirming the judgment of conviction dated 29.05.2019 and

order of sentence dated 30.05.2019 passed by learned Judicial

Magistrate, First Class, Kandaghat, District Solan, H.P., in complaint

case No. 82/3 of 2014, titled as Bansi Ram versus Deepak Verma,

whereby learned trial Court, while holding petitioner-accused guilty of

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

having committed an offence punishable under Section 138 of the

Negotiable Instruments Act, convicted and sentenced him to undergo

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simple imprisonment for a period of one month and pay compensation

to the tune of Rs.12,50,000/- to the complainant.

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

record are that respondent No.1/complainant (for short

'complainant') filed a complaint under Section 138 of the Negotiable

Instruments Act (for short 'Act') in the competent court of law,

averring therein that after his having retired from the post of Hawaldar

from SSB (Seema Suraksha Bal) Group Center, Dharampur on

01.12.2001, he purchased bus from Sh. Jagdish son of Sh. Phool

Chand. Since registration of the bus could not be transferred in the

name of the complainant, he kept it running in the name of Sh.

Jagdish. Since complainant did not get any profit from the bus

business, he sold the bus to the accused for a sum of Rs. 4, 50,000/-

on credit basis. On account of aforesaid transaction, allegedly

accused came very close to the complainant and he made

complainant as partner in the firm namely, M/s Verma Tyres,

Chambaghat. Though, entire business was being run by the accused,

but complainant was made sleeping partner in the firm. Accused was

in need of money and as such, complainant deposited sum of

Rs. 1, 00,000/- in his account maintained by the Bhagat Bank,

Chambaghat. Complainant also alleged that he also paid

Rs. 3,00,000/- after raising loan from State Bank of Patiala, Branch

Waknaghat and deposited sum of Rs. 1, 80,000/- in Punjab National

Bank Parag in the account of M/s Apollo Tyres at the instance of the

accused and in total, complainant paid sum of Rs. , 10,30,000/- to the

accused from time to time, who subsequently with a view to discharge

his liability, issued cheque bearing No.044962, dated 22.07.2013,

amounting to Rs. 11, 40,000/- Ex. CW1/C drawn on Punjab National

Bank, Parag. However, fact remains that aforesaid cheque on its

presentation was dishonoured on account of "insufficient funds" in the

bank account of the accused vide memo Ex. Ex.CW1/D. After receipt

of aforesaid memo, complainant served the accused with legal notice

through his counsel on 7.09.2013 calling upon him to pay the amount

within a period of 30 days from the date of receipt of the cheque.

However, fact remains that neither amount was paid nor legal notice

was replied, as result thereof, complainant was compelled to institute

proceedings under Section 138 of the Act in the competent Court of

law.

3. Though, complainant with a view to prove his case

besides examining himself as CW-2, also examined two witnesses

namely, Hari Chand (CW-1) Sharma and Mr. Vikrant Dutta(CW-3)

respectively, whereas despite sufficient opportunities, accused failed

to lead evidence in defence. In his statement recorded under Section

313 Cr.P.C, though accused denied the case of the complainant in

toto, but alleged that since accused used to sit in his office, he might

have stolen his cheque from his office, meaning thereby factum with

regard to cheque belonging to him as well as signatures thereupon

never came to be denied on his part.

4. Learned trial Court on the basis of the evidence adduced

on record by the respective parties, held 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 hereinabove.

5. Though, being aggrieved and dissatisfied with the

aforesaid judgment of conviction and order of sentence recorded by

learned trial court, present petitioner-accused preferred an appeal in

the Court of learned Sessions Judge Solan, Himachal Pradesh, but

same was also dismissed vide judgment dated 08.12.2021. In the

aforesaid background, petitioner has approached this Court in the

instant proceedings, praying therein for his acquittal after quashing

and setting aside the impugned judgments and order passed by

learned Courts below.

6. Vide order dated 23.02,2022, this Court suspended the

substantive sentence imposed by the Court below subject to

petitioner-accused depositing 15% of the compensation amount and

furnishing personal bond within a period of four weeks. Aforesaid

order was duly complied with but during the proceedings of the case

accused had undertaken to deposit 35% of the compensation amount

to make it 50% of the compensation amount. However, such order

never came to be complied with. Though, repeatedly matter was

adjourned calling upon the petitioner to settle the matter, but in vain.

7. Having heard learned counsel representing the parties

and perused the material available on record vis-à-vis reasoning

assigned in the impugned judgments, this Court is not persuaded to

agree with the submissions of Mr. Vipin Pandit, learned counsel for

the petitioner-accused that Courts below have failed to appreciate the

evidence in its right perspective, rather this Court finds that both the

courts below have very meticulously dealt with each and every aspect

of the matter and there is no scope left for interference.

8. Though, in the instant case, opportunity was afforded to

the accused to lead evidence, but he failed to avail that. In his

statement recorded under Section 313 Cr.P.C, though he denied

transaction, if any, interse him and the complainant, but stated that

since complainant used to come and sit in his office, he might have

stolen his cheque, meaning thereby factum with regard to cheque in

question belonging to him as well as signatures thereupon never

came to be disputed. If it is so, presumption as available under

Sections 118 and 139 of the Act comes into play, which clearly

provides that there shall be presumption in favour of the holder of the

cheque that cheque was issued towards discharge of lawful liability.

No doubt, aforesaid presumption is rebuttable, but to rebut such

presumption, accused either can refer to the documents and evidence

led on record by the complainant or presumption can be rebutted by

leading positive evidence, if any. However, in the instant case,

presumption available in favour of the complainant never came to be

rebutted.

9. 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

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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

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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.

10.

Though, Mr. Vipin Pandit, learned counsel for the

petitioner, while making this Court peruse contents of the complaint

attempted to argue that accused successfully rebutted the

presumption that cheque was not issued in discharge of liability. He

submitted that as per the averments contained in the complaint, loan

of Rs. 3,00,000/- was taken by the complainant from State Bank of

Patiala, however in evidence complainant attempted to prove that

sum of Rs. 3, 00,000/- was paid after getting loan in favour of his

brother. However, this Court is not impressed with the afore

submission of learned counsel for the petitioner. No doubt, in

complaint it came to be averred that sum of Rs. 3,00,000/- was paid

after availing loan from SBOP, Waknaghat, but thereafter omission, if

any, in deposition to the effect that complainant had arranged

aforesaid amount from his brother, who had obtained loan from

aforesaid bank may not be of much relevance, rather question of

relevance for adjudication of the present case is that sum of Rs.

3,00,000/- was paid to the accused by the complainant, may be by

arranging from his brother. Since there is no denial, if any, with

regard to issuance of cheque as well as signatures thereupon,

presumption as available under Section 139 of the Act rightly came to

be applied in the case of the petitioner.

11. Though, accused attempted to carve out a case that

cheque in question might have been stolen by the complainant , but

neither FIR or complaint, if any, lodged ever came to be adduced on

record, nor there is any explanation that in the event of theft, if any,

why action, if any, was not taken against the complainant. By

introducing the story of theft as taken note hereinabove, accused

virtually admitted factum with regard to use of his cheque and at no

point of time, he disputed his signatures upon the cheque. Neither he

alleged that writing upon the cheque is of not him, rather same is of

the complainant.

12. In view of the above, this Court finds no illegality or

infirmity in the findings returned by both the Courts below. In the case

at hand, complainant successfully proved on record that cheque in

question was issued by the accused to the complainant towards

discharge his lawful liability, but same was dishonoured on account of

insufficient funds in the bank account. After having received returned

memo, accused was duly served with legal notice, but he neither

replied the same nor paid the money and as such, complainant had

no option but to institute proceedings under Section 138 of the Act.

13. Having scanned the entire evidence adduced on record

by the respective parties, this Court finds that all the basic ingredients

of Section 138 of the Act stand met in the case at hand. Similarly

factum with regard to signatures and issuance of cheque by the

accused towards discharge of lawful liability stands duly established

on record.

14. 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

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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."

15. 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, there is no occasion, whatsoever, to exercise the

revisional power.

16. 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 miscarriage of justice or to

correct irregularities/ incorrectness committed by inferior criminal