Himachal Pradesh High Court

Date Of Decision: 18.09.2024 vs Bhag Singh on 18 September, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                             2024:HHC:8925



            IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                Cr. Revision No.626 of 2022
                                                Date of Decision: 18.09.2024
    __________________________________________________________________________




                                                               .
    Ilyas Ali                                                   .........Petitioner





                                            Versus
    Bhag Singh                                                  .......Respondent

    Coram





    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting?
    For the Petitioner:      Dr. Rajesh Kumar Parmar, Advocate.
    For the Respondent: None.





    __________________________________________________________________________
    Sandeep Sharma, J. (Oral)

Instant criminal revision petition filed under Section 397 read

with Section 401 Cr.P.C., lays challenge to judgment dated 30.07.2022,

passed by the learned Additional Sessions Judge, Nalagarh, District Solan,

Himachal Pradesh, in Regd. CIS No.98 of 2019, titled Ilyas Ali Vs. Bhag

Singh, affirming judgment of conviction and order of sentence dated

09.08.2019/02.09.2019, passed by the learned Judicial Magistrate First

Class, Nalagarh, District Solan, Himachal Pradesh, in complaint No.400/3

of 2015, whereby the learned trial Court while holding the petitioner-

accused (hereinafter, "accused") guilty of having committed offence

punishable under Section 138 of the Negotiable Instruments Act (in short

the "Act"), convicted and sentenced him to undergo simple imprisonment

for a period of six months and pay compensation to the tune of Rs.60,000/-

to the respondent-complainant.

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

that respondent-complainant (hereinafter, 'complainant') instituted a

complaint under Section 138 of the Act, in the competent Court of law,

alleging therein that accused entered into an agreement dated 26.07.2014

with him to hire the tractor bearing No.HR-06-R-7975 along with loader @

Rs.2000/- per day. He alleged that agreement was reduced into writing

duly attested by Notary Public and with a view to discharge his lawful

liability, accused issued Cheque bearing No.528607 dated 04.07.2015

amounting to Rs.50,000/- drawn on State Bank of Patiala, Branch Bhagni,

Tehsil Paonta Sahib, District Sirmaur, District Shimla, Himachal Pradesh,

however, on presentation of aforesaid Cheque to the Bank concerned, the

same was dishonoured with the remarks "Insufficient Funds". After receipt

of aforesaid return memo, complainant served accused with a legal notice

through registered post, however, since petitioner-accused failed to make

the payment good within the time stipulated in the legal notice,

respondent/complainant was compelled to initiate proceedings under

Section 138 of the Act in the Court of learned Judicial Magistrate First

Class, Nalagarh, District Solan, Himachal Pradesh.

3. Learned trial Court on the basis of material adduced on record

by the respective parties, vide judgment/order dated

09.08.2019/02.09.2019, held the petitioner-accused guilty of having

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committed offence under Section 138 of the Act and accordingly, convicted

and sentenced him, as per the description given hereinabove.

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

the Court of learned Additional Sessions Judge, Nalagarh, District Solan,

Himachal Pradesh, however, same was dismissed vide judgment dated

30.07.2022. In the aforesaid background, petitioner-accused has

approached this Court by way of instant proceedings, seeking therein his

acquittal after setting aside the judgments of conviction recorded by the

Courts below. r

5. Vide order dated 22.11.2022, Co-ordinate Bench of this Court

stayed the substantive sentence imposed by the learned Court below,

subject to petitioner/accused depositing 50% of the compensation amount,

however, fact remains that aforesaid order was never complied with.

Though, repeatedly matter was adjourned enabling the petitioner to deposit

the amount or to settle the matter with the complainant, but in vain.

6. Since petitioner/accused was not coming forward to impart

instructions, learned counsel representing the petitioner/accused

submitted during the proceedings of the case that case at hand be decided

on its own merits.

7. Having heard learned counsel for the parties and perused

material adduced on record, vis-a-vis reasoning assigned in the impugned

judgments, this Court sees no reason to agree with Dr. Rajesh Kumar

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Parmar, learned counsel representing the petitioner that Courts below have

fallen in grave error while appreciating the evidence, rather this Court finds

that both the Courts below have meticulously dealt with each and every

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

8. Though, Dr. Rajesh Kumar Parmar, learned counsel

representing the petitioner, while making this Court peruse evidence

adduced on record, attempted to argue that both the Courts below failed to

appreciate the evidence in its right perspective, but such submission of his

deserves outright rejection, being contrary to the record. Admittedly in the

case at hand, there is no dispute with regard to issuance of Cheque as well

as his signatures thereupon, rather, petitioner/accused while getting his

statement recorded under Section 313 Cr.P.C. has categorically admitted

factum of his having issued Cheque as well his signatures thereupon, but

attempt came to be made to prove on his behalf that no amount was

payable. Since factum with regard to issuance of Cheque as well as his

signatures thereupon never came to be disputed by the petitioner, no

illegality can be said to have been committed by both the Courts below

while invoking Sections 118 and 139 of the Act, which speak about

presumption in favour of the holder of the Cheque that Cheque was issued

towards discharge of a 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

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can be rebutted by leading positive evidence, if any. However, in the instant

case, despite sufficient opportunities, petitioner-accused failed to lead any

evidence to probabilize the defence sought to be raised by putting certain

suggestions to the complainant in his cross-examination. Similarly, he was

unable to point out from the documents as well as evidence adduced on

record by the complainant that Cheque issued by him was not towards

discharge of lawful liability.

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 credibility of negotiable instruments. While

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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

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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 rdishonour 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."

10. In the case at hand, complainant in order to prove his case

examined himself as CW-1. He filed affidavit Ex.CW1/A, reiterating therein

averments contained in the complaint. If cross-examination conducted

upon this witness is perused in its entirety, it can be safely concluded that

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accused was unable to extract something contrary to what this witness

stated in examination-in-chief. Though attempt came to be made at the

behest of accused to carve out a case that Cheque in question was not

issued towards discharge of lawful liability, but he was unable to dispute,

factum of his having executed agreement dated 26.07.2014, which was

allegedly executed inter se petitioner-accused and complainant for

transportation of sugarcane. As per aforesaid agreement, accused had

agreed to pay Rs.2000/- per day for transportation of sugarcane in the

tractor bearing No.HP-06-R-7975 owned by complainant. To partly

discharge the liability of rent qua tractor in question, accused issued

Cheque Ex.C1, but same on its presentation to Bank concerned came to be

dishonoured vide return memo Ex.C2 on account of insufficient funds in

the Bank account of the accused. Complainant successfully proved on

record that before initiating proceedings under Section 138 of the Act, he

had served accused with legal notice Ex.C2 calling upon him to make the

payment good within stipulated time. By placing on record postal receipts

and acknowledgment, Ex.C4 & Ex.C5, complainant successfully proved on

record that though legal notice was duly served upon accused, but he

neither paid the amount in dispute nor he replied to the same. Leaving

everything aside, accused failed to explain that in case he had no liability, if

any, towards complainant, why and under what circumstances, Cheque in

question was issued. Since factum with regard to issuance of Cheque as

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well as his signatures thereupon never came to be refuted, both the Courts

rightly held accused guilty of his having committed the offence punishable

under Section 138 of the Act, especially when Cheque in question issued by

him was dishonoured on account of insufficient funds.

11. Since factum of issuance of Cheque as well as his signatures

thereupon was never disputed, presumption as available under Section 118

and 139 of the Act rightly came to be invoked in the case of the petitioner

that Cheque in question was issued in discharge of lawful liability. Since no

evidence worth credence ever came to be led on record to rebut the

presumption, no illegality can be said to have been committed by the

Courts below while holding petitioner/accused of his having committed

offence punishable under Section 138 of the Act. Though, no specific

defence ever came to be taken at the behest of the petitioner/accused that

Cheque in question was issued as a security, but even if it is presumed that

Cheque in question was issued as a security, that may not be of any help to

the accused, for the reason that by now, it is well settled that Cheque, if

any, issued as a 'security' can also be presented for encashment, if amount

taken or promised to be repaid is not paid.

12. 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:

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"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 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 rissued 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."

13. 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.

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14. 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 are met in the case at hand. Since Cheque issued by accused

towards discharge of his lawful liability was returned on account of

insufficient funds in the bank account of accused and he despite having

received legal notice failed to make the payment good within the stipulated

time, complainant had no option but to institute proceedings under Section

138 of the Act, which subsequently rightly came to be decided by both the

Courts below on the basis of pleadings as well as evidence adduced on

record by the respective parties.

15. Moreover, this Court has a very limited jurisdiction under

Section 397 of the Cr.P.C to re-appreciate the evidence, especially in view of

the concurrent findings of fact and law relied upon 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

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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."

16. 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.

17. 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 court in its

judicial process or illegality of sentence or order, but learned counsel