Punjab-Haryana High Court
Mansa Central Co Operative Bank ... vs Lachhman Singh on 5 July, 2023
Neutral Citation No:=2023:PHHC:084314
CRM-A-650 of 2020 2023:PHHC:084314 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-A-650 of 2020 (O&M)
Date of decision: 5th July, 2023
The Mansa Central Co-operative Bank Ltd.
...Applicant
Versus
Lachhman Singh
...Respondent
CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN
Present: Mr. Arvinder Singh, Advocate for the applicant.
****
AVNEESH JHINGAN, J (Oral):
1. This application filed by the Mansa Central Cooperative Bank
Ltd. (for short, 'the Bank') for grant of leave to appeal against the judgment
of acquittal is accompanied by an application for condoning the delay of 23
days in filing thereof.
2. The dispute in the present case is relating to dishonouring of
cheque of Rs.1,69,000/- for clearing the balance loan of Rs.60,000/-.
3. The brief facts are that the accused (respondent herein) availed
housing loan of Rs.2,00,000/- on 24.11.2012. The loan was to be repaid in
monthly installments. A cheque bearing NO. 355201 dated 12.9.2016
amounting to Rs.1,69,000/- was given by the respondent for clearing the
loan . On presentation, the cheque was dishonoured vide memo dated
12.9.2016 with remarks "insufficient funds". A complaint under Section
138 of the Negotiable Instruments Act, 1881 (for short, 'the Act') was filed.
Happy, the authorised representative of the Bank tendered his affidavit to
support the complaint.
4. The accused in statement under Section 313 Cr.P.C. stated that
the bank had obtained thumb impression on the blank cheque. The cheque
book was with the bank. No notice was served upon him.
5. It was concluded that the complainant failed to prove its case.
The authorised representative appearing on behalf of the Bank in cross-
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examination stated that he had neither served the notice nor given the loan
to the accused. Further, the original file was not produced. He admitted the
fact that out of Rs.2,00,000/-, Rs.1,40,000/- were repaid by the accused.
6. Learned counsel for the applicant submits that the trial court
erred in acquitting the accused. The presumption under Section 139 of the
Act was not considered. It is further argued that it was not disputed that the
cheque had thumb impression of the accused.
7. The operational part of the impugned judgment is reproduced
below:
"7. I have heard the learned counsel for the complainant bank
as well as ld. Defence counsel and have gone through the file
very carefully. After hearing learned counsel for the parties
and going through the statements of witnesses and documents
on record, I am of the considered view that complainant has
failed to prove its case against accused. Complainant in his
cross-examination stated that he had not issued notice to
accused Lachhman Singh. He even did not give loan to him.
He has admitted that as per statement of account of Lachhman
Singh he had taken loan of Rs.2 lakhs and repaid
Rs.1,40,000/-. He has stated that the cheque was issued and
bounced in their bank. In this case, nothing was written or
happened in his presence. By resolution Mr. Virinder was
authorized to contest the case under Section 138 of NI Act. He
did not bring the original loan file. So complainant failed to
prove its case. Hence, the present complaint is dismissed and
accused is ordered to be acquitted of the notice served upon
him. Bail bonds and surety bonds are not to be discharged till
the expiry of period of appeal or revision, if any. File be
consigned to the record room."
8. Proviso (c) to Section 138 of the Act provides that Section 138
of the Act shall not apply unless the drawer of the cheque fails to make
payment of amount to the payee within fifteen days of the receipt of the
notice.
9. The authorised representative in his cross-examination
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specifically stated that he had not issued the notice. Not only this, for the
reasons best known, he had not produced the original record.
10. The contention that presumption under Section 139 of the Act
was not considered lacks merit. The applicability of Section 138 of the Act
would be on the failure of the drawer of the cheque to pay the amount
within fifteen days of the receipt of the notice.
11. In Dashrath Rupsingh Rathod v. State of Maharashtra and
another, Criminal Appeal No. 2287 of 2009, decided on 1.8.2014 the
Supreme Court analysing Section 138 of the Act held:
"31. To sum up:
(i) An offence under Section 138 of the Negotiable Instruments
Act, 1881 is committed no sooner a cheque drawn by the
accused on an account being maintained by him in a bank for
discharge of debt/liability is returned unpaid for insufficiency
of funds or for the reason that the amount exceeds the
arrangement made with the bank.
(ii) Cognizance of any such offence is however forbidden
under Section 142 of the Act except upon a complaint in
writing made by the payee or holder of the cheque in due
course within a period of one month from the date the cause of
action accrues to such payee or holder under clause (c) of
proviso to Section 138.
(iii) The cause of action to file a complaint accrues to a
complainant/payee/holder of a cheque in due course if
(a) the dishonoured cheque is presented to the drawee
bank within a period of six months from the date of its issue.
(b) If the complainant has demanded payment of cheque
amount within thirty days of receipt of information by him
from the bank regarding the dishonour of the cheque and
(c) If the drawer has failed to pay the cheque amount
within fifteen days of receipt of such notice.
(iv) The facts constituting cause of action do not constitute the
ingredients of the offence under Section 138 of the Act.
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(v) The proviso to Section 138 simply postpones/defers
institution of criminal proceedings and taking of cognizance
by the Court till such time cause of action in terms of clause
(c) of proviso accrues to the complainant.
(vi) Once the cause of action accrues to the complainant, the
jurisdiction of the Court to try the case will be determined by
reference to the place where the cheque is dishonoured.
(vii) The general rule stipulated under Section 177 of Cr.P.C
applies to cases under Section 138 of the Negotiable
Instruments Act. Prosecution in such cases can, therefore, be
launched against the drawer of the cheque only before the
Court within whose jurisdiction the dishonour takes place
except in situations where the offence of dishonour of the
cheque punishable under Section 138 is committed along with
other offences in a single transaction within the meaning
of Section 220(1) read with Section 184 of the Code of
Criminal Procedure or is covered by the provisions of Section
182(1) read with Sections 184 and 220 thereof."
[Emphasis supplied]
12. The scope for interference in appeal against acquittal is
well settled. A Division Bench of this Court in State of Punjab v.
Hansa Singh, 2001 (1) RCR (Criminal) 775, while dealing with an
appeal against acquittal, held:
"We are of the opinion that the matter would have to
be examined in the light of the observations of the
Hon'ble Supreme Court in Ashok Kumar v. State of
Rajasthan, 1991(1) SCC 166, which are that
interference in an appeal against acquittal would be
called for only if the judgment under appeal were
perverse or based on a mis-reading of the evidence
and merely because the appellate Court was
inclined to take a different view, could not be a
reason calling for interference."
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13. The testimony of authorised representative of bank had not
substantiated the complaint, he neither had personal knowledge of the facts
nor produced the original file. There is no factual or legal error, much less
perversity, in the impugned judgment. The view taken by the trial court is
plausible one. No case is made out for interference in the judgment of
acquittal.
14. The application for grant of leave to appeal is dismissed.
Consequently the application for condonation of delay is also dismissed.
[AVNEESH JHINGAN]
JUDGE
5th July, 2023
mk
1. Whether speaking/ reasoned : Yes / No
2. Whether reportable : Yes / No
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