Punjab-Haryana High Court
Kulwinder Singh vs Ajay Kamboj on 12 July, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
303
CRA-AS-132-2022 (O&M)
Date of decision: 12.07.2022
KULWINDER SINGH
....Appellant(s)
Versus
AJAY KAMBOJ
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
*****
Present : Mr. G.B.S. Gill, Advocate
for the appellant.
*****
VINOD S. BHARDWAJ. J. (ORAL)
The present appeal has been preferred against the judgment dated
11.09.2018 passed by the Chief Judicial Magistate, Sirsa in case titled as
'Kulwinder Singh Vs Ajay Kamboj' instituted under Section 138 of the Negotiable
Instruments Act, 1881.
Briefly the case of the complainant is to the effect that the
complainant had entered into an agreement in the year 2012 and that the terms
and conditions of such an agreement had been incorporated in the agreement
dated 03.09.2012. Five pairs of Emu birds had been provided to the complainant
and an amount of Rs.2,25,000/- was paid to the accused as costs of the aforesaid
birds. As per the terms and conditions of the agreement, the accused was to
purchase the eggs of Emu birds from the complainant at the rate of Rs.1200/- per
egg. The complainant had supplied eggs to the accused, however, no payment had
been made by the accused in breach of the terms and conditions of the same.
Accordingly, the appellant-complainant was entitled to claim Rs.3.50 lakhs from
the respondent-accused and a cheque bearing No.056549 dated 01.12.2013 was
issued by the respondent-accused for the aforesaid amount of Rs.3.50 lakhs
towards discharge of the said liability. Upon the cheque being presented to the
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bank, the same was dishonoured with remarks 'funds insufficient', whereupon legal
notice was sent to the respondent-accused upon failure of the respondent to remit
the payment and the complaint in question was instituted.
Respondent-accused was summoned to face prosecution. Notice of
accusation was served, whereupon the following witnesses were examined by the
appellant
PW1 Shri Sudesh Bhoriya, Branch Manager
PW2 Shri Ankit Verma, Clerk
PW3 Shri Kulwinder Singh (complainant)
PW4 Shri Khem Chand
Besides this the complainant also tendered following documents:-
Ex.P1 Agreement
Ex.P2 Original cheque
Ex. PW1/A Cheque return memo
Ex.PW2/A Cheque return memo
Ex.PW2/B to
Ex. PW2/F Copies of account statement
Ex.PW4/A Copy of legal notice
Ex.PW4/B Postal receipt
Ex.PW4/C Registered envelope
Mark-A Receipt of Happy Emu Farm, Dabwali
Thereafter, complainant closed his evidence vide a statement recorded
separately. Statement of the accused under Section 313 of the Code of Criminal
Procedure was recorded, in which all the incriminatory evidence brought on record
against him was put to him, to which he denied in toto and claimed false
implication.
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Upon consideration of the evidence adduced by the respective parties,
the Chief Judicial Magistrate, Sirsa recorded as under:-
9. The case of complainant is that he entered into an agreement
with the accused to supply the Emu by the accused to him and
in that transaction, an amount of Rs.3,50.000/- was due against
the accused. It is alleged that in discharge of said liability,
accused issued cheque Ex.Cl/Ex.P2. which was dishonoured
and accused failed to pay the amount in spite of legal notice
served upon him. In this regard, it is pertinent to mention that
in order to be successful for the complaint under Section 138 of
Negotiable Instrument Act, it is to be proved by complainant
that cheque was issued by the accused in discharge of the legal
liability to pay. In this regard, complainant Kulwinder Singh
has examined himself as PW3. however, he failed to prove that
in the business transaction between him and accused, some
amount was due and cheque was issued in discharge of that
liability. In his cross-examination, he has stated that he has
entered into Emu farm business in September, 2016 and that
business was continue for the next one year, whereas. alleged
transaction is of year 2012. He has not mentioned, neither in
the complaint nor in his affidavit Ex.PW3/A how many eggs of
Emu have been supplied to the accused. He has produced two
documents i.e. Mark-A and Ex.PI (agreement) dated
03.09.2012 and signatures. over both differ. He has not
produced any document which proves that any transaction of
supplying Emu taken place between complainant and accused
in which the cheque amount was due against the accused. By
way of the agreement Ex.Pl. the liability of accused to pay
cheque amount is not proved on record. In agreement Ex.Pl. it
has been mentioned that complainant has paid the amount of
Rs.2.25.000/- to accused, however, there is no receipt of the
same. It is not proved on record that said amount was ever
paid to the accused. In agreement Ex.P1 the liability of accused
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to pay the above said amount is not mentioned nor the liability
to pay the cheque amount has been mentioned. A careful
perusal of Ex.P1 agreement dated 03.09.2012 revealed that it
has been witnessed by witnesses Trilok son of Shri Sukhdev Raj
and Naib Singh son of Shri Jamir ingh, however, said witnesses
have not been examined by the complainant to prove the legal
liability of accused to pay the cheque amount. Further, PW1
Shri Sudesh Bhoria, Branc Manager and Shri Ankit Verma,
Clerk have deposed about issuing of cheque return memos
Ex.PWI/A and Ex.PW2/A.
10. In such circumstances it cannot be ruled out that accused
issued the cheque Ex.P2 as cheque and handed over the a
security same to complainant. Hon'ble Supreme Court of India
in authority titled M/s Kumar Experts Vs. M/s Sharma Carpets.
2009(1) BCR 624. has held that complainant did not produce
any books of account or stock register maintained by him in the
course of his regular business or any acknowledgement for
delivery of goods, to establish that as a matter of fact woolen
carpets were sold by him. Complainant thus failed to establish
his case under Section 138. Conviction set aside.
It was further held in the case that to rebut the statutory
presumptions, accused is not expected to prove his defence
beyond reasonable doubt as is expected of the complainant in a
criminal trial. Something which is probable has to be brought
on record forgetting the burden of proof shifted to the
complainant.
A pointed query was raised to the learned counsel for the appellant-
complainant as to whether any document establishing the existence of liability in
the form of supply of eggs as claimed by the petitioner has been produced on
record and the reply is the negative. It is thus evident that the appellant-
complainant has not been able to lead any evidence to show that the cheque in
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question had been issued towards the discharge of a pre-existence liability and is
solely placing reliance on the agreement dated 03.09.2012. The said agreement can
at best be a corroborative evidence to establish a legal relationship amongst the
parties, however, the same would not establish that the supply pursuant to the said
agreement had in fact been made. Once the entire case of the appellant-
complainant is based upon an approval of the liability towards supply of the eggs,
the relevant evidence which was required to be produced ought to have
substantiated and established that the eggs had been actually supplied.
In the absence of any such evidence, there can be no presumption of
existence of that liability and legally enforceable debt and the conclusion so drawn
by the Chief Judicial Magistrate, Sirsa is a possible view. The same cannot be said
to be perverse or based upon misreading of the evidence adduced on record.
In view of the above, I do not find any infirmity in the judgment
passed by the Chief Judicial Magistrate, Sirsa. The present appeal is dismissed as
being without any merit.
(VINOD S. BHARDWAJ)
JUDGE
July 12, 2022
S.Sharma(syr)
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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