Lal Singh vs Ram Mohan
2022 Latest Caselaw 7762 P&H

243   IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                       CHANDIGARH

                                        CRM-31265-2018 in/and
                                        CRM-A-1846-MA-2018
                                        Date of Decision: 26th July, 2022
Lal Singh
                                                                ... Applicnat

                         Versus
Ram Mohan

                                                              ... Respondent

CORAM : HON'BLE MR. JUSTICE AVNEESH JHINGAN

Present :   Mr. Prashant Bansal, Advocate for the applicant.

                                ***

AVNEESH JHINGAN , J.(Oral)

1. This is an application for grant of leave to appeal against

judgment of acquittal in Complaint No. 261RT, dated 26th October, 2016

under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the

Act'). The application is accompanied by an application for condoning the

delay of 88 days.

2. Brief facts as set up by the applicant are that Ram Mohan-

respondent borrowed a loan of Rs.3,95,000/-. To discharge the liability,

respondent issued a cheque bearing No. 254325, dated 26th July, 2016.

3. On presentation, the cheque was dishonoured on 1st October,

2016 with the remarks 'Account closed'. After serving a legal notice, the

complaint was filed. The complainant to prove his case himself stepped

into the witness box, filed his affidavit, produced original cheque, legal

notice, postal receipt, statement of account of Bhag Singh.

4. The respondent took a defence that he had taken loan from the

brother of the complainant. On repaying the amount, the cheques were not

returned. The security cheque was misused. To substantiate the defence

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taken, he examined DW-1 Ravinder Singh, Account Officer, Malwa

Gramin Bank, Shambhu, Head Messanger of State Bank of India, Ambala,

and DW-3 Lakhwinder Singh brother of the complainant. An application

filed under Section 156(3) Cr.P.C. against the brother of the complainant

for not returning the cheques was also placed on record.

5. The Court accepting the defence taken by the accused as

probable and on failure of the applicant to prove the loan transaction,

acquitted the respondent.

6. Learned counsel for the applicant submits that trial Court erred

in acquitting the respondent. The applicant had shown that the amount was

withdrawn from the bank. The respondent failed to prove his case that the

cheque in question was given to the brother of the applicant. The

deposition of Lakhwinder Singh (brother of the applicant) was not with

regard to cheque in question but he gave a different cheque number which

was given for security.

7. The law is well settled that the presumption under Sections

118 and 139 of the Act are in favour of the holder of cheque but are

rebuttable. The onus casted on the accused under Section 138 proceedings

is not as strict as on the prosecution.

8. The Supreme Court in Vijay v. Laxman and another, 2013

(2) JT 562 held as under:

"We are not unmindful of the fact that there is a presumption

that the issue of a cheque is for consideration. Sections 138

and 139 of the Negotiable Instruments Act make that

abundantly clear. That presumption is, however, rebuttable

in nature. What is most important is that the standard of

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CRM-A-1846-MA-2018 proof required for rebutting any such presumption is not as

high as that required of the prosecution. So long as the

accused can make his version reasonably probable, the

burden of rebutting the presumption would stand discharged.

Whether or not it is so in a given case depends upon the facts

and circumstances of that case. It is trite that the courts can

take into consideration the circumstances appearing in the

evidence to determine whether the presumption should be

held to be sufficiently rebutted. The legal position regarding

the standard of proof required for rebutting a presumption is

fairly well settled by a long line of decisions of this Court".

9. The defence taken by the accused is to be tested on a

reasonably probable defence. In the present case, a specific defence was

taken that the security cheques given to the brother of the applicant was

misused. To substantiate a complaint filed under Section 156(3) Cr.P.C.

was produced. After the rebuttal of the presumptions, the onus shifted upon

the applicant.

10. The withdrawal of the amount from the bank nowhere enhance

the case of the applicant to substantiate the allegations that the loan of

Rs.3,95,000/- was given to the respondent. No document was produced to

show a debt or other liability existing on the date of presentation of the

cheque.

11. The contention of the learned counsel for the applicant that the

respondent failed to discharge onus casted upon him, that a cheque in

question was handed over to the brother of the applicant is noted to be

rejected. The defence taken by the accused under Section 138 of the Act is

to be tested on probability. After rebuttal of presumption, it was for the

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applicant to discharge the onus and prove that there was a loan

transaction between the applicant and the respondent. It would be not out

of place to mention that as per the respondent four cheques were given to

brother of the applicant. The reliance on deposition of the brother of the

applicant by learned counsel for the applicant that a different cheque was

mentioned by him does not enhance the case of applicant.

12. No case is made out for grant of leave, as no legal or factual

error, much less perversity has been pointed out in the impugned judgment.

The conclusion arrived at by the trial court is plausible reason.

13. The application is dismissed.

14. Since the main application is dismissed, pending applications

if any, are rendered infructuous.

(AVNEESH JHINGAN ) JUDGE th 26 July, 2022 Parveen Sharma Whether reasoned/speaking Yes/No Whether reportable Yes/No

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