Gurpreet Singh vs Palwinder Singh And Anr
2022 Latest Caselaw 7339 P&H

258   IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH

                                         CRR-3421-2018
                                                             th
                                         Date of Decision: 20 July, 2022
Gurpreet Singh
                                                                    ... Petitioner

                          Versus

Palwinder Singh and another

                                                               ... Respondents

CORAM : HON'BLE MR. JUSTICE AVNEESH JHINGAN

Present :    Mr. V.K. Kaushal, Advocate for the petitioner.
             Mr. Sandeep Kumar, DAG, Punjab.
                               ***

AVNEESH JHINGAN , J.(Oral)

1. This petition is filed against the judgment dated 16th August,

2018, passed by Learned Additional Sessions Judge, Amritsar whereby

respondent No.1 has been acquitted from charges under Section 138 of

Negotiable Instrument Act, 1881 (for short 'the Act').

2. On dishonouring of cheque bearing No. 208309, dated

10th June, 2014, Rs.1,40,000/- on 14th June, 2014 with the remarks

'Account closed', the petitioner filed a complaint under the Act.

3. The case set up by the petitioner was that respondent

Palwinder Singh had taken a loan of Rs.1,40,000/- and to discharge the

liability, he issued the cheque in question, which was dishonoured. A legal

notice was served.

4. In the complaint filed, respondent No. 1 took a defence that a

cheque was handed over to the father of the petitioner in 2007, to secure

the loan taken from him. The loan was repaid but the cheque given for

security was misused by the petitioner. It was further stated that a

complaint was made to the police commissioner with regard to non

returning of the cheque by the father of the petitioner.

1 of 3

5. Respondent No.1 was convicted vide judgment dated

5th September, 2016 and vide order of even date, he was sentenced to

undergo one year imprisonment and to pay a fine of Rs. 1,75,000/-, in case

of default of payment of fine, rigorous imprisonment for a period of one

month. Aggrieved of conviction and quantum of sentence, appeal was

preferred. The Appellate Court considering defence as probable, on failure

of the respondent to prove his financial capacity to advance the loan and

that a loan transaction took place between him and the petitioner, acquitted

the respondent No.1.

6. Learned counsel for the petitioner submits that the cheque,

bank memo, legal notice and postal receipt were exhibited and the

Appellate Court erred in acquitting the respondent No.1, on the ground that

petitioner failed to prove his financial capacity for advancing the loan.

7. There is no quarrel on the proposition that the presumptions

under Sections 118 and 139 of the Act are in favour of the holder of the

cheque but are rebuttable. The onus on the accused in proceedings under

Section 138 of the Act is not as strict as on the prosecution. Once the

presumptions are rebutted by the accused, the onus shifts on the

complainant.

8. Respondent No.1 was not acquitted only on the ground that

the petitioner failed to prove his financial capacity to advance the loan but

he was acquitted as the petitioner had not produced any evidence to

substantiate the allegations of advancing loan to respondent No.1, or to

establish debt due on date of presentation of cheque.

9. No case for interference in the impugned appellate order is

made out, as no legal or factual error, much less perversity has been

pointed out.

2 of 3

The conclusion arrived at by the Appellate Court is plausible reason.

10. The petition is dismissed.

(AVNEESH JHINGAN ) JUDGE th 20 July, 2022 Parveen Sharma Whether reasoned/speaking Yes/No Whether reportable Yes/No

3 of 3