Himachal Pradesh High Court

Decided On: September vs Suresh Kumar on 11 September, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

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         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                                     Criminal Revision No. 288 of 2024
                                      Decided on: September 11, 2024
     ________________________________________________________
     Vikash Kumar                                       .........Petitioner
                                     Versus




                                                                       .
     Suresh Kumar                                        ...Respondent





     ________________________________________________________
     Coram
     Hon'ble Mr. Justice Sandeep Sharma, Judge.
     Whether approved for reporting1?





     ________________________________________________________
     For the petitioner:     Mr. Vinay Mehta, Advocate.

     For the respondent:   Mr. Kulbhushan Khajuria and Mr.
                           Pushpinder Verma, Advocates.
     ________________________________________________________





     Sandeep Sharma, J.

Instant criminal revision petition filed under S.397/401

CrPC, lays challenge to judgment dated 1.4.2024 passed by learned

Additional Sessions Judge, Chamba, Himachal Pradesh affirming

judgment of conviction and order of sentence dated 22.2.2023 passed

by learned Chief Judicial Magistrate, in complaint case 158/2017, titled

Suresh Kumar v. Vikash Kumar, whereby learned trial Court, while

holding petitioner-accused guilty of having committed offence

punishable under S.138 of the Negotiable Instruments Act (hereinafter,

'Act'), convicted and sentenced him to undergo simple imprisonment

for a period of one year and pay compensation to the tune of

Rs.1,45,000/- to the respondent-complainant (hereinafter,

'complainant').

2. Precisely, the facts, as are necessary for the adjudication of the

case at hand, are that the complainant instituted proceedings under

Whether reporters of the Local papers are allowed to see the judgment?

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S.138 of the Act in the court of learned Chief Judicial Magistrate,

Chamba, Himachal Pradesh alleging therein that on the request of

accused, he made available Rs. 1.00 Lakh to the accused enabling him

to meet his domestic problem, who with a view to discharge his

aforesaid liability, issued cheque dated 29.5.2017, Exhibit CW-1/B,

amounting to Rs. 1.00 Lakh, however, on presentation to the bank, the

same was dishonoured by the banker of the accused, on account of

insufficient funds and the same was returned vide return memo,

Exhibit CW-1/C. Since despite having received, legal notice Exhibit

CW-1/C, accused failed to make good the payment, complainant had

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

competent court of law, which subsequently, on the basis of pleadings

and evidence adduced on record by respective parties, held accused

guilty of having committed offence punishable under S.138 of the Act

and convicted and sentenced the accused, as per description given

herein above.

3. Though, at first instance, accused preferred an appeal in the

court of learned Additional Sessions Judge, Chamba but the same

also came to be dismissed vide judgment dated 1.4.2024. In the

aforesaid background, accused has approached this court in the

instant proceedings, praying therein for his acquittal, after setting aside

judgment of conviction and order of sentence passed by learned

Courts below.

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     4.     Vide    order     dated   15.5.2024,     this   court    suspended the

substantive imposed upon the accused by learned trial Court, subject

to petitioner depositing 30% of compensation amount as well as

furnishing personal bail bonds. However, fact remains that aforesaid

order never came to be complied with. Today, during proceedings of

the case, learned counsel for the petitioner fairly stated that since

petitioner is not coming forward to deposit the amount, this Court may

proceed to decide the petition on its own merit.

5. Having heard learned counsel for the parties and perused

material available on record vis-à-vis reasoning assigned in judgment

passed by learned Additional Sessions Judge, this court finds no

illegality or infirmity in the same, as such, no interference is called for.

6. Interestingly, in the case at hand, at no point of time, factum of

his having issued of cheque and his signatures thereupon came to be

refuted by the accused, rather, he attempted to carve out a case that

he had not borrowed any sum from the complainant, as such, had no

liability to be discharged. Since the petitioner was unable to dispute

factum with regard to having issued cheque and his signatures

thereupon, no illegality can be said to have been committed by learned

trial Court, while invoking Ss.118 and 139 of the Act, which speaks

about presumption that the cheque was issued in discharge of a legally

enforceable liability.

7. No doubt, aforesaid presumption is rebuttable but persons

seeking to rebut such presumption either can refer to the pleadings and

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evidence adduced on record by the complainant or to probablize his

defence, can lead positive evidence. In the case at hand, despite

sufficient opportunity, accused failed to lead any evidence. While cross

examining complainant, accused attempted to carve out a case that he

has already paid Rs. 55,000/- to the complainant in lieu of Rs.25,000/-

borrowed from the complainant and cheque in question was issued as

a security, which was misused by the complainant, however, aforesaid

defence never came to be probablized.

8. Cross-examination of the complainant, if perused, in its entirety,

nowhere suggests that the accused was able to extract from

complainant, contrary to what he stated in his examination-in-chief.

Complainant, while deposing as CW-1, nowhere agreed to suggestion

put forth at the behest of accused that sum of Rs. 55,000/- was paid by

the accused. Neither anything could be extracted by the accused from

complainant in his cross-examination nor accused was able to point out

anything in the pleadings or evidence led on record by complainant,

suggestive of the fact that cheque in question was issued as security

and amount for which cheque was issued, already stood received by

the complainant.

9. Reliance in this regard is placed upon judgment rendered by

Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat,

(2019) 18 SCC 106, wherein, it has been held as under:

"18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the

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complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and

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unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case

could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused- appellant has brought on record such facts/material/circumstances

which could be of a reasonably probable defence.

19. In order to discharge his burden, the accused put forward the defence that in fact, he had had the monetary transaction with the said Shri Jagdishbhai and not with the complainant. In view of such a plea

of the accused-appellant, the question for consideration is as to

whether the accused-appellant has shown a reasonable probability of existence of any transaction with Shri Jagdishbhai? In this regard, significant it is to notice that apart from making certain suggestions in the cross-examination, the accused- appellant has not adduced any

documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp

paper was given to Shri Jagdishbhai and another factor relied upon is

that Shri Jagdishbhai had signed on the stamp paper in question and not the complainant.

19.1 We have examined the statement of Shri Jagdishbhai as also the

said writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant. 19.2 The said witness Shri Jagdishbhai, while pointing out his acquaintance and friendship with the appellant as also with the respondent, asserted in his examination-in-chief, inter alia, as under:

"Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other.

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The accused had necessity of money in his business, in my presence, had demanded Rs.22,50,000/- (Rupees twenty two lacs fifty thousandly) on temporary basis. And thereafter, the complainant from his family members by taking in piecemeal had given to the accused in my presence. Thereafter, on demanding the money by the complainant, the accused had given seven (7) cheques to the complainant in our presence but such cheques being washed out in

.

rainy water and on informing me by the complainant I had informed to

the accused. Thereafter, Rohitbhai had given other seven (7) cheques to the complainant in my presence and the deed was executed on Rs. 100/- stamp paper in there is my signature."

19.3 This witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross- examination, the witness stated as under:

"I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the r accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was

quarrel between me and the accused in the matter of payment of interest. It is not true that even after the payment of Rs. ten lacs and the huge amount of the interest in the matter of interest quarrel was made. It is not true that due to the reason of quarrel with the accused, in the cheques of the accused

lying with me by making obstinate writing has filed the false complaint through Shashimohan Goyanka. It is not true that no financial dealings have taken place between the complainant and the accused. therefore I also the complainant both at the time of evidence the accused at what place, on what date at

what time, the amount taken has not been able to make clearly. (sic) It is not true that the blank stamp paper duly

signed were lying in which obstinate writing has been made therefore the same has not been registered through sub registrar. It is not true that the dealings have been made between me and accused therefore there is my signature and

the signature of the accused and the complainant has not signed. It is not true that any types of dealings between the accused and the complainant having not been done in my presence therefore in my statement no clarification has been given. It is not true that the accused in my presence as mentioned in the complaint any cheque has not been given. It is not true that I in collusion with the complainant to usurp the false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that in support of the complaint of Shashimohan Goyanka is giving false statement."

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19.4 The statement of Shri Jagdishbhai does not make out any case in favour of the accused-appellant. It is difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of bringing on record such material which could tilt the preponderance of

.

probabilities in his favour.

19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit

numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under :

"Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the financial difficulties having been arised, I

have taken Rs.22,500,000/- (Rupees twenty two thousand fifty thousand only- sic) from my group which are to be paid to Shashimohan Goyanka.

With reference to that today I have given seven (7) cheques of

Corporation Bank, Alkapuri Branch bearing No. 763346 to 762252

amounting to Rs. 22,50,000/- (Rupees twenty two lacs fifty thousand only) Dates : (1) 01/4/08, (2) 01/05/08 (3) 01/07/08, (4) 01/08/08 (5) 01/10/08 (6) 01/11/08 (7) 01/12/08 the account of which is 40007.

Earliest these cheques were given but due to rainy water logging the

said cheques having been washed out (7) cheques have again been given which is acceptable to me."

19.6 The fact of the matter remains that the appellant could not

deny his signatures on the said writing but attempted to suggest that

his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a

blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post- dated, starting from 01.04.2008 and ending at 01.12.2008. There

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appears absolutely no reason to discard this writing from consideration.

19.7 One of the factors highlighted on behalf of the appellant is that the said writing does not bear the signature of the complainant but and instead, it bears the signatures of said Shri Jagdishbhai. We find

nothing unusual or objectionable if the said writing does not bear the signatures of the complainant. The said writing is not in the nature of any bi partite agreement to be signed by the parties thereto. It had

been a writing in the nature of acknowledgement by the accused- appellant about existence of a debt; about his liability to repay the same to the complainant; about his having issued seven post-dated cheques; about the particulars of such cheques; and about the fact

that the cheques given earlier had washed away in the rain water logging. Obviously, this writing, to be worth its evidentially value, had to bear the signatures of the accused, which it does. It is not unusual to have a witness to such a document so as to add to its authenticity;

and, in the given status and relationship of the parties, Shri

Jagdishbhai would have been the best witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily

against the accused-appellant.

10. 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

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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

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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."

11. Since factum of issuance of cheque and signatures thereupon

never came to be disputed by the accused, learned Courts below

rightly drew presumption available under Ss. 118 and 139 of the Act, in

favour of holder of the cheque i.e. complainant.

12. Though, there is ample material available on record led by the

complainant suggestive of the fact that cheque in question was issued

towards discharge of legally enforceable liability, but even if it is

presumed that cheque in question was issued as a security, no

illegality can be said to have been committed by learned Courts below,

as despite being a security cheque, complainant could present the

same for encashment, in case the amount in question is not paid by the

accused..

13. 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

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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 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."

14. 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.

15. Admittedly, cheque issued by the accused towards discharge of

lawful liability was returned by bank concerned with the remarks

"insufficient funds". 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

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be allowed by both the Courts below in view of evidence adduced on

record by the complainant.

16. 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."

17. True it is that the Hon'ble Apex Court in Krishnan and another

v. 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

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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