Aman Goyal vs Aneet Goel
2023 Latest Caselaw 5240 P&H

                                                                                  2023:PHHC:058029

                                   IN THE HIGH COURT OF PUNJAB AND HARYANA
                                                AT CHANDIGARH

                                                             CRR No.503 of 2023 (O&M)
                                                             Date of Decision: April 25, 2023



                         Aman Goyal                                              ...Petitioner


                                                          Versus


                         Aneet Goel                                             ...Respondent



                         CORAM:        HON'BLE MR. JUSTICE SUDHIR MITTAL


                         Present:      Mr. R.K. Handa, Advocate and
                                       Mr. Dharam Bir Bhargav, Advocate, for the petitioner.

                                       *****

                         SUDHIR MITTAL, J.

The petitioner is the accused in a complaint filed under

Section 138 of the Negotiable Instruments Act, 1881 (hereinafter

referred to as the Act). The complaint was filed on account of

dishonour of Cheque No.049331 dated 16.11.2012 drawn on Central

Bank of India, Sector 10, Panchkula for a sum of Rs.2.33 crores. The

complaint succeeded and the petitioner was convicted vide judgment of

conviction dated 09.02.2017. Vide order of sentence of even date, he

has been sentenced to undergo RI for a period of two years and has also

been made liable to pay Rs.2 crores as compensation. Appeal

thereagainst has been dismissed vide judgment dated 22.12.2022.

ANKUR GOYAL 2023.04.25 14:11 I attest to the accuracy and integrity of this order/judgment 2023:PHHC:058029

CRR No.503 of 2023 (O&M) [2]

2. The averments made in the complaint are that the accused

induced the complainant to invest a sum of Rs.2 crores in the business of

oil retail outlet as his wife had been allotted one by the Indian Oil

Corporation. An assurance was given that if the project did not commence

by the end of October, 2012, the amount would be returned. Thus, a sum

of Rs.2.17 crores in all was deposited in the account of M/s Sakshi Trading

Company through various transactions. Excess amount of Rs.16 lacs was

returned and a sum of only Rs.2.01 crores was retained. Rs.1 lac was

retained for expenses to be borne for finalization of partnership documents.

As security, six different cheques were given to the complainant, the first

of which was for a sum of Rs.51,12,500/- and dated 16.11.2011 and the

remaining were for a total sum of Rs. 1.5 crores and dated 31.01.2012. The

accused could not commence business as promised and return of money

was demanded. In discharge of his liability aforementioned cheque was

issued for a sum of Rs.2.33 crores, Rs.32 lacs being on account of interest.

However, the same was dishonoured.

3. A perusal of the impugned judgments shows that in his

statement under Section 313 Cr.P.C., the accused denied all the averments

made in the complaint. The factum of payment of sum of Rs.2.17 crores in

the account of M/s Sakshi Trading Company was denied. He also denied

issuance of the cheque in dispute and his signature thereupon. It was stated

that the complainant had obtained a cheque book of 20 leaves by forging an

application and without the knowledge of the accused. FIR No.76, dated

12.06.2013 was thus got registered. Being the Chartered Accountant of the

accused, he had misused his position.

ANKUR GOYAL 2023.04.25 14:11 I attest to the accuracy and integrity of this order/judgment 2023:PHHC:058029

CRR No.503 of 2023 (O&M) [3]

4. Both the Courts below have returned concurrent findings that

cheque in dispute was issued in discharge of a legally enforceable liability

and that payment of a sum of Rs.2 crores had been proved. The defence

has been disbelieved as FIR No.76, dated 12.06.2013 registered against the

complainant for having fraudulently obtained a cheque book of the accused

by forging his application has been found to be false since cancellation

report had been filed. The witness from Central Bank of India has also

deposed that the accused had also issued other cheques from the same

cheque book which were honoured. The witness from the police has

proved kalandra Ex.CW-4/B vide which proceedings under Section 182

IPC were initiated against the accused. There is also on record a report

from the FSL, Madhuban opining that the signature on the cheque in

dispute was genuine.

5. Learned counsel for the petitioner has argued that the findings

of the Courts below are perverse. The evidence on record by way of cross-

examination of the complainant has been misread and misconstrued. The

complainant has failed to prove his capacity to advance such a huge sum of

money. Proof of payment is also not there on record as the complainant

has failed to produce any written agreement or any other record regarding

the alleged investment. He has also failed to produce his income tax

returns. The presumption in favour of the complainant stood rebutted but

the Courts below have failed to hold so. Thus, the petition deserves to

succeed. Reliance is placed upon judgments dated 21.07.2022, in CRA-

AS-147-2022, Pamod @ Parmod Kumar vs. Geeta Devi, dated

25.07.2022, in CRA-AS-152-2022, Tarsem Chand vs. Manjit Kaur ANKUR GOYAL 2023.04.25 14:11 I attest to the accuracy and integrity of this order/judgment 2023:PHHC:058029

CRR No.503 of 2023 (O&M) [4]

Vashisht and dated 06.04.2022 in CRM-A-2271-MA-2017, Sukhdial vs.

Devi Lal.

6. The cheque in dispute has been subjected to forensic

examination in an FIR got registered against the complainant by the

accused viz. FIR No.76, dated 12.06.2013. The result thereof is that the

signature thereupon is genuine and has not been forged. In the light of this

evidence and the affidavit of the complainant, a presumption arose in

favour of the complainant under Section 139 of the Act. The said

presumption is rebuttable and rebuttal can be done even through

preponderance of probabilities, but, the question is whether the accused has

succeeded in doing so. In my considered opinion, he has not. The defence

of the accused is that his cheque book had been fraudulently obtained by

the complainant by forging his application. The same has been proven to

be wrong by the witness from the bank who has deposed that other cheques

from the same cheque book had been issued by the accused and had been

honoured. Forensic examination has shown that the signature on the

cheque is genuine. Thus, the accused-petitioner has not been able to create

a dent in the case set up by the complainant. For this reason, the

presumption has not been rebutted. In this view of the matter, the

submissions that the complainant did not prove his capacity to pay a huge

amount nor did he prove the actual payment thereof are meaningless.

7. The judgments relied upon by learned counsel for the

petitioner are all distinguishable on facts. In each of these judgments there

ANKUR GOYAL 2023.04.25 14:11 I attest to the accuracy and integrity of this order/judgment 2023:PHHC:058029

CRR No.503 of 2023 (O&M) [5]

was evidence on record that the cheque issued to the complainant had been

misused. This is not the position in the present case.

8. The revision petition has no merit and is dismissed.

9. Pending miscellaneous applications, if any, also stand

disposed of.

                     April 25, 2023                                          (SUDHIR MITTAL)
                     'Ankur Goyal'                                                JUDGE



                     Whether speaking/reasoned                       Yes

                     Whether Reportable                              Yes




ANKUR GOYAL
2023.04.25 14:11
I attest to the accuracy and
integrity of this order/judgment