Punjab-Haryana High Court
Balwinder Singh vs Satnam Singh on 20 May, 2022
CRM-A 1017-MA of 2017 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-A 1017-MA of 2017
Date of Decision: 17th May, 2022
Balwinder Singh
... Applicant
Versus
Satnam Singh
... Respondent
CORAM : HON'BLE MR. JUSTICE AVNEESH JHINGAN
Present : Mr. Nakul Sharma, Advocate for the applicant.
***
AVNEESH JHINGAN , J.(Oral)
This is an application under Section 378(4) Cr.P.C. for grant of
leave to appeal against acquittal of the respondent in Criminal Complaint
No. 98-2 of 13.9.2012 vide judgment dated 29.10.2016.
As per the case set up by the complainant, the respondent
borrowed a sum of Rs.5,00,000/- from the complainant and in order to
discharge the liability, cheque No. 218562 dated 2.7.2012 for an amount of
Rs.5,00,000/- drawn on Oriental Bank of Commerce, Ferozepur Cantt, was
issued in favour of the complainant. On presentation, the cheque was dis-
honoured vide memo dated 4.7.2012 with the remarks "insufficient funds".
After giving legal notice, complaint under Section 138 of the Negotiable
Instruments Act, 1881 (for short, 'the Act') was filed.
The complainant filed an affidavit reiterating the allegations
and proved original cheque, bank memo, copy of the legal notice and the
postal receipt. In his statement under Section 313 Cr.P.C., the respondent
stated that he stood guarantor for Nachattar Singh against whom the
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complaint was filed by the complainant. Nachattar Singh was declared
proclaimed offender and the respondent was falsely implicated.
To rebut the presumption the respondent took a stand that
blank cheque was given as a security for the amount due for purchase of
cow. The due amount of Rs.28,000/- was paid, firstly by paying Rs.3,000/-
and thereafter Rs.25,000/-. To substantiate the stand taken, the respondent
examined DW-2 Gurmeet Singh. He deposed that in the month of
November, 2012 the respondent purchased a cow from the complainant for
an amount of Rs.28,000/-. In his presence Rs.3,000/- was paid to the
complainant and a blank cheque given as security. The complainant told
that interest @ 10% would be charged on the remaining amount.
DW1-Balbir Singh was examined. As per his deposition, he
gave Rs.25,000/- to the respondent in June, 2012 who further gave it to the
complainant in lieu of purchase of cow but the blank cheque was not
returned.
The complainant had not pleaded in complaint particulars
regarding date, month or year of advancing loan. In his cross-examination,
he stated that the amount was given in June, 2002. The trial court noted that
the complaint was filed in 2012, cheque was dated 2.7.2012 hence there
was time difference of ten years. Moreover, there were no written
documents with regard to lending of money. The complainant further
admitted that the amount was given to the respondent in the presence of
Darshan Singh but Darshan Singh was not examined.
The trial court considering the factual position and the
evidence adduced concluded that the respondent was able to rebut the
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presumption raised against him under Sections 118 and 139 of the Act. The
complainant however failed to discharge the onus shifted on him after
rebuttal of the presumptions and the respondent was acquitted.
Learned counsel for the petitioner submits that there was
variation in the stand taken by the respondent in the statement made under
Section 313 Cr.P.C. and the defence taken.
The contention is devoid of merit. It is trite law that statement
made under Section 313 Cr.P.C. is not an evidence. The respondent had
produced two witnesses to support his stand that the cheque was given as
security for the amount payable for purchase of cow and the entire amount
due was paid.
The Supreme Court in Edmund S. Lyngdoh v. State of
Meghalaya, 2016 (15) SCC 572, held:
"21. Where the accused gives evasive answers in his cross-
examination under Section 313 Cr.P.C., an adverse inference
can be drawn against him. But such inference cannot be a
substitute for the evidence which the prosecution must adduce
to bring home the offence of the accused. The statement under
Section 313 Cr.P.C. is not an evidence. In Balwant vs. State
of U.P. (2008) 9 SCC 974, this Court held that conviction of
the accused cannot be based merely on his statement recorded
under Section 313 Cr.P.C. which cannot be regarded as
evidence. It is only the stand or version of the accused by way
of explanation explaining the incriminating
evidence/circumstances appearing against him. The statement
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made in defence by the accused under Section 313 Cr.P.C.
can certainly be taken aid of to lend credence to other
evidence led by the prosecution. Statements made under
Section 313 Cr.P.C. must be considered not in isolation but in
conjunction with the other prosecution evidence."
The conclusion of the trial court cannot be faultered as it is
settled law that presumption under Section 139 of the Act is a rebuttable.
The respondent successfully rebutted the presumption against him,
thereafter, the complainant failed to produce even an iota of evidence to
prove that the cheque in question was issued in discharge of debt or other
liability.
No case is made out for grant of leave to appeal.
The application is dismissed.
(AVNEESH JHINGAN )
JUDGE
17th May, 2022
mk
Whether reasoned/speaking Yes/No
Whether reportable Yes/No
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