Punjab-Haryana High Court
Girraj Sharma vs Devender on 2 November, 2023
Neutral Citation No:=2023:PHHC:139953
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRR-1469-2016
Reserved on: 13.10.2023
Pronounced on: 02.11.2023
Neutral Citation No. 2023: PHHC: 139953
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GIRRAJ SHARMA . . . . Petitioner
Vs.
DEVENDER . . . . Respondent
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Present: - Mr. Shiv Kumar, Advocate, for the petitioner.
Mr. Yogeshwar Dayal, Advocate, for the respondent.
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DEEPAK GUPTA, J.
Petitioner is aggrieved by the judgment dated 26.02.2016
passed in Criminal Appeal N: 62 of 2015 titled 'Devender vs. Girraj
Sharma' by ld. Additional Sessions Judge, Faridabad, acquitting the
respondent from the charges under Section 138 of the Negotiable
Instruments Act, 1881 [for short 'the NI Act'], by reversing the judgment of
conviction, recorded in Complaint Case N: RBT 1429 of 2009 titled 'Girraj
Sharma vs. Devender' by the Court of ld. Judicial Magistrate 1st Class.
2. In order to avoid confusion, parties shall be referred as per their
status before the trial Court.
3. Perusal of the trial Court record reveals that complainant -
Girraj Sharma (petitioner herein) sought prosecution of accused - Devender
(respondent herein) under Section 138 of the NI Act, by filing the complaint
in the Court of ld. JMIC, Faridabad, by alleging that accused had taken
friendly loan of `1,75,000/- in May 2009 for a period of one month,
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promising to refund the same along with interest @ 24% per month. In order
to discharge his liability, accused issued account payee cheque No.344062
dated 10.06.2009 for an amount of `1,75,000/- drawn on IDBI Bank Ltd.
Sector 16, Faridabad, favoring the complainant. However, on presentation,
the cheque was returned unpaid vide return memo dated 11.06.2009 with
remarks 'drawers signature incomplete'. Intimation was received by the
complainant in this regard from his banker on 13.06.2009. Complainant
then served a legal notice dated 15.06.2009 through his Advocate and sent it
to the accused through registered post, asking him to make payment of the
cheque amount within 15 days of the receipt of the notice. However, despite
receipt of the notice, accused failed to make payment. With these
allegations, complaint was filed on 30.07.2009.
4. After recording preliminary evidence, process against the
accused was issued on the same day i.e., 30.07.2009. Despite service, in
accordance with law, accused did not put in appearance and was ultimately
declared proclaimed person vide order dated 07.03.2012. He was produced
by the police before the Court of ld. JMIC, Faridabad on 19.03.2012 and was
released on bail.
5. Notice of accusation was served upon the accused on
17.09.2012 under Section 138 of the NI Act, to which he pleaded not guilty
and claimed trial. Complainant appeared as his own witness, faced
cross-examination and concluded his evidence. Statement of the accused
under Section 313 CrPC was recorded, in which he took the stand that he
had borrowed only `55,000/- from the complainant and that cheque in
question was issued by him as a security cheque. He further stated that
cheque bears his signature at one place, adjacent to the seal of Ex.C1 on the
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cheque. He admitted to have received the legal notice. He opted to adduce
evidence in defence. Application of the accused under Section 315 CrPC to
appear as his own witness was allowed and accused then appeared in the
witness box as DW1 and further examined one Babu Lal as DW2 and after
tendering documents Ex.D4 & D5, closed his defence evidence.
6. After hearing counsels for both the sides, Ld. JMIC, Faridabad
vide judgment dated 16.01.2014 recorded conviction of the accused under
Section 138 of the NI Act and vide a separate order of the even date,
sentenced him to undergo rigorous imprisonment for a period of one year
and further directed him to pay an amount of `2,46,000/- as compensation to
the complainant. In case of default of payment of compensation, he was
further directed to undergo simple imprisonment for a period of two months.
7. On the same day i.e., 16.01.2014, when the conviction was
recorded, sentence was suspended under Section 389 CrPC and interim bail
was granted to accused for a period of 30 days to enable him to file appeal.
However, the accused (now convict) neither filed the appeal within the time
allowed to him nor surrendered before the trial Court. His bail was cancelled
on 01.03.2014 and warrants of arrest were issued against him. He was
arrested by the police on 01.07.2015 and produced before the Court and then
sent to jail.
8. Against the judgment of conviction and order of sentence both
dated 16.01.2014, the accused-convict filed an appeal in the Court of
Sessions by pleading that his conviction has been wrongly recorded; that
there was no documentary evidence to prove the existence of loan
transaction; that cheque in question had been misused; that actual loan
amount was `55,000/- only, out of which he had already paid `40/45,000/-
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and thus, there was no liability. It was contended further that trial Court had
ignored the evidence produced by him and had wrongly convicted him.
Prayer was made to set aside the conviction and sentence as recorded by the
trial Court.
9. The aforesaid appeal, as filed on 13.07.2015, was accompanied
by an application for condonation of delay. It was pleaded in the application
that the previous counsel had not informed the applicant-accused about the
decision of the case; that he came to know about the decision only on
01.07.2015 and after obtaining the certified copy of the judgment, he filed
the appeal, and so the delay was not intentional.
10. Perusal of the appeal file reveals that without passing any order
on the application for condonation of delay, the appeal was admitted on
16.07.2015. The accused-convict was released on bail on the same day.
Notice of appeal only was issued to the respondent-complainant. Thereafter,
vide impugned judgment dated 26.02.2016, the Court of ld. Additional
Sessions Judge, Faridabad not only allowed the application thereby
condoning the delay, but further set aside the judgment of conviction and
order of sentence as passed by the trial Court and acquitted the
appellant-accused, thus allowing his appeal.
11. The complainant of the case i.e., petitioner herein is now in this
revision against the aforesaid reversal and also challenges the order
condoning the delay in filing the appeal.
12. (i) It is contended by ld. counsel that impugned judgment dated
26.02.2016 is completely based on conjectures and surmises and by
misreading and misappreciation of oral as well as documentary evidence. All
the necessary ingredients of Section 138 of the NI Act were duly proved on
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record. Ld. trial Court had rightly convicted the accused after proper
appreciation of evidence. The only defence taken by the accused was that he
had taken loan of `55,000/- and had issued the cheque in question for the
purpose of surety, but failed to substantiate the said defence.
(ii) Ld. Counsel has further contended that no opportunity was
provided to the complainant (respondent before the Court of Sessions) to
contest the application for condonation of delay and that the said application
was allowed at the time of final disposal, thus, depriving the complainant to
challenge that order and due to that reason, that order has been challenged in
this revision itself.
(iii) With aforesaid submissions, prayer is made to set aside the
impugned judgment of acquittal recorded by the Court of Sessions and to
restore the judgment passed by the trail Court thereby convicting and
sentencing the respondent-accused.
13. On notice to the respondent-accused, he made appearance
though his counsel and contested the revision.
14. I have considered submissions of both the sides and have
appraised the record carefully.
15. Facts, as noticed above, would reveal that complainant
(petitioner herein) was not granted any opportunity to oppose the application
to condone the delay in filing the appeal by the appellate court and so, he has
the right to challenge the order before this court.
16. In order to see justifiability for condonation of delay, overall
conduct of accused is important to notice. Though, process against the
accused was issued by the Court of ld. JMIC on 30.07.2009 but despite
service and even receipt of legal notice prior to filing of the complaint, he
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did not appear in the Court nor responded to the legal notice. He was
ultimately declared proclaimed person on 07.03.2012 and was produced by
the police on 19.03.2012. After the trial was concluded and his conviction
was recorded on 16.01.2014, his sentence was suspended for a period of 30
days to enable him to file appeal before the Court and in the meantime, he
was admitted to interim bail vide order dated 16.01.2014. However, as
noticed earlier, he neither filed appeal nor surrendered before the trial Court
and rather, absconded. His bail was cancelled and ultimately, he was
produced by the police after arresting him on 01.07.2015.
17. In the aforesaid circumstances, the plea taken by the accused in
his application for condonation of delay moved before the Appellate Court
to the effect that his previous counsel had not informed about the decision
and that on coming to know of the same, he obtained the certified copy and
then filed the appeal, is absolutely not sustainable. There was no justifiable
reason for condoning the delay in filing the appeal on 13.07.2015 i.e., with
delay of more than one year and as such, the order of ld. Appellate Court,
allowing the application for condonation of delay, is reversed.
18. Though appeal of the accused against his conviction deserved to
be dismissed on the ground of limitation itself and so, this revision deserves
to be allowed, but even on merits, the revision deserves to be allowed for
reasons as recorded below.
19. As per the trial Court record, Ex.C1 is the cheque in question
dated 10.06.2009 for an amount of `1,75,000/- drawn on IDBI Bank issued
in favour of the complainant by the accused. Ex.C2 is the bank return memo
report dated 11.06.2009, as per which cheque was returned unpaid for the
reasons 'drawers signature incomplete'. Ex.C4 is the copy of legal notice
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dated 15.06.2009 sent by the complainant through his counsel to the
accused. The notice was sent through registered post as evident from postal
receipt Ex.C3 and accused duly received the notice as evident from
acknowledgment due card Ex.C5. All these documents are duly proved by
the testimony of CW1-complainant Girraj Sharma.
20. During his cross-examination, it was suggested on the part of
the accused to the complainant-Girraj Sharma that cheque Ex.C1 was given
by Devender (accused) after filling and signing the same. Said suggestion
was admitted by the complainant to be correct. The said suggestion in itself
contains the clear admission of the accused to have issued the cheque Ex.C1
in favour of the complainant after filling and signing the same. In his
statement recorded under Section 313 CrPC also, accused admitted his
signature on the cheque Ex.C1, though claimed that it was issued as a
security cheque. When accused entered in the witness box as DW1, here also
he candidly admitted to have handed over the cheque Ex.C1 to the
complainant-Girraj Sharma after signing the same.
21. Once the signature on the cheque is admitted by the accused,
presumption under Section 139 of the NI Act to be read with Section 118 of
the NI Act are clearly available to the complainant. Said provisions read as
under: -
"139. Presumption in favour of holder. - It shall be presumed, unless the
contrary is proved, that the holder of a cheque received the cheque, of the nature
referred to in section 138, for the discharge, in whole or in part, of any debt or
other liability."
118. Presumptions as to negotiable instruments. - Until the contrary is proved,
the following presumptions shall be made: -
(a) of consideration. - that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it has been
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accepted, endorsed, negotiated or transferred, was accepted, endorsed,
negotiated or transferred for consideration;
(b) as to date. - that every negotiable instrument bearing a date was made
or drawn on such date;"
22. In Rangappa vs. Sri Mohan, 2010 (3) Criminal Court Cases
022 (S.C.): 2010 (3) Civil Court Cases 115 (S.C.): 2010 (2) Apex Court
Judgments 285 (S.C.): 2010 (11) SCC 441, a three judges bench of the
Hon'ble Supreme Court held that Section 139 of the NI Act includes the
presumption regarding the existence of a legally enforceable debt or liability
and that the holder of a cheque is also presumed to have received the same in
discharge of such debt or liability. It was clarified in the aforesaid decision
that the presumption of the existence of a legally enforceable debt or liability
is, of course, rebuttable and it is open to the accused to raise a defence,
wherein the existence of a legally enforceable debt or liability can be
contested. Without doubt, the initial presumption is in favour of the
complainant.
23. Hon'ble Supreme Court further held in above case that Section
139 of the NI Act is stated to be an example of a reverse onus clause, which
is in tune with the legislative intent of improving the credibility of
negotiable instruments. Section 138 of the NI Act provides for speedy
remedy in a criminal forum, in relation to dishonour of cheques.
Nonetheless, the Hon'ble Supreme Court cautions that the offence under
Section 138 of the NI Act is at best a regulatory offence and legally falls in
the arena of a civil wrong and therefore, the test of proportionality ought to
guide the interpretation of the reverse onus clause. An accused may not be
expected to discharge an unduly high standard of proof, reverse onus clause
requires the accused to raise probable defence for creating doubt about the
existence of a legally enforceable debt or liability for thwarting the
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prosecution. The standard of proof for doing so would necessarily be on the
basis of "preponderance of probabilities" and not "beyond shadow of any
doubt."
24. In Basalingappa Vs. Mudibasappa 2020 SCC OnLine SC 491,
referring to various precedents on Section 118(a) and 139 of the Negotiable
Instruments Act, Hon'ble Supreme Court summarized the principles as
under:
• Once the execution of cheque is admitted, Section 139 of the Act
mandates a presumption that the cheque was for the discharge of any debt
or other liability.
• The presumption under Section 139 is a rebuttable presumption and
the onus is on the accused to raise the probable defence. The standard of
proof for rebutting the presumption is that of preponderance of
probabilities.
• To rebut the presumption, it is open for the accused to rely on
evidence led by him or accused can also rely on the materials submitted by
the complainant in order to raise a probable defence.
• Inference of preponderance of probabilities can be drawn not only
from the materials brought on record by the parties but also by reference to
the circumstances upon which they rely. That it is not necessary for the
accused to come in the witness box in support of his defence, Section 139
imposed an evidentiary burden and not a persuasive burden.
• It is not necessary for the accused to come in the witness box to
support his defence.
25. It is in the light of the aforesaid legal position that it is required
to be seen that whether accused has been able to probabilise his defence.
Here itself, it may be noted that the accused is not required to prove his
defence on the standard of proof 'beyond reasonable doubt' and rather, is
simply required to probabilise his defence. The presumption under Section
139 of the Act can be rebutted even by evidence led by the complainant; and
it is not required for the defence to lead evidence to rebut presumption, as
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has been held by the Hon'ble Supreme Court in Shiv Kumar Vs. Ram Avtar
Aggarwal, 2020(2) RCR (Crl.) 147.
26. In order to rebut the presumption available to complainant
under Section 139 of the NI Act, accused can either appear in the witness
box though it is not mandatory; or he can elicit circumstances favourable to
him during the cross-examination of complainant; or put forth his defence in
his statement under Section 313 Cr.P.C. supported by evidence. Here itself,
it may be noted that statement of accused under Section 313 Cr.P.C is not a
substantive piece of evidence. If accused put forth his defence in said
statement, he must support it with evidence. Reliance can be placed on
Sumeti Vij Vs. M/s Paramount Tech Fab Industries, 2021(2) CCC 348
(SC).
27. In a case to prosecute the accused under Section 138 of the NI
Act, the accused gets first opportunity to put forth his defence by responding
to the legal notice, which is sent to him, prior to filing of the complaint. He
gets second opportunity, when notice of accusation is served upon him and if
he so desires, he can put forth his defence. He gets next opportunity by
eliciting the answers from the complainant in his cross-examination by
suggesting his defence to the complainant. The next time, accused gets the
opportunity to put forth his defence when his statement under Section 313 is
recorded and lastly, he gets the opportunity, when he produces his own
defence.
28. In the present case, ld. Appellate Court has been swayed by the
fact that accused had put forth his defence to have taken loan of `55,000/-
only, by replying to the legal notice. However, ld. appellate Court very
conveniently ignored the fact that the reply dated 16.09.2009 (Ex.D1) to the
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legal notice dated 15.06.2009, was sent by the accused, after filing of the
present complaint, which had been filed way back on 30.7.2009. During his
cross-examination as DW1, accused admitted this fact that he sent reply to
the legal notice after filing of the complaint. As such, the reply Ex.D1 to the
legal notice, sent by the accused after filing of the complaint, could not have
been taken into consideration.
29. Even if the stand taken by the accused in reply dated
16.09.2009 to the legal notice dated 15.06.2009 is taken into consideration,
as per him, he had taken loan of `55,000/- only on 10.11.2008 and that
complainant had received his (accused's) signature on some blank papers
and had also received a blank cheque as security. Further stand was taken
that he (accused) had already paid an amount of `45,000/-. In his statement
recorded under Section 313 CrPC also, accused took the same stand.
30. However, it is important to notice that neither the reply to the
legal notice nor the statement of the accused under Section 313 CrPC, are on
oath. These cannot be considered as evidence to prove the stand of the
accused, particularly when reply has been sent after filing of the complaint.
Reliance in this regard can be placed upon Sumeti Vij's case (supra),
wherein it has been held by the Hon'ble Supreme Court that statement of
accused recorded under Section 313 Cr.P.C is not substantive evidence of
defence, but is only an opportunity to accused to explain the incriminating
circumstances appearing in the prosecution case. Similar view was taken by
Hon'ble Supreme Court in Uttam Rama Vs. Devinder Singh Hudan &
Anr., 2019(4) CCC 596 (SC) to the effect that statement of accused under
Section 313 Cr.P.C is not substantive evidence.
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31. In view of the above legal position, simply by taking the
stand either in reply to the legal notice or in the statement under Section 313
CrPC that accused had taken loan of `55,000/- only and that blank cheque
was given as a security, it cannot be stated that presumption in favour of the
complainant stands rebutted or that the defence is probablized.
32. It is no doubt true that when accused entered the witness box as
DW1, he repeated this stand by way of his affidavit Ex.DW1/A to the effect
that he had taken `55,000/- on 10.11.2008, in lieu of which accused had
taken his signature on blank papers and had also taken a blank signed cheque
as security. However, most importantly, when complainant-Girraj Sharma
entered the witness box as CW1, this stand was not confronted by the
accused to the complainant at all. There is no suggestion that loan of
`55,000/- only was taken on 10.11.2008. There is absolutely no suggestion
that complainant had taken signature of the accused on any blank papers.
There is no suggestion that complainant had taken any blank signed cheque
as security from the complainant.
33. To the contrary, as has already been noted, specific suggestion
was given to the complainant that accused Devender had given cheque
Ex.C1 after filling and signing the same and said suggestion was admitted by
complainant to be correct. Not only this, in his cross-examination as DW1
also, accused admitted that he had given cheque Ex.C1 to the complainant-
Girraj Sharma after signing the same. The above suggestions put forth to
complainant-Girraj Sharma and the admission in his cross-examination by
the accused, completely falsify his stand taken in reply Ex.D1 to the legal
notice or the statement under Section 313 CrPC to the effect that he had
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taken loan of `55,000/- only or that he had already returned `45,000/- or
that he had handed over a blank signed cheque as security.
34. Still further, without holding so, let it be assumed for a moment
that accused had taken loan of `55,000/- only from the complainant and as a
security, he had given cheque Ex.C1. It simply means that there was no such
trust between the parties that complainant could give the money to the
accused without any security. If it is so, it is hard to believe that accused
will return the amount of `45,000/- to him as is projected by him, without
obtaining any receipt or writing from the complainant or without insisting
upon return of the security cheque. The said circumstance further goes
against the accused, falsifying his defence.
35. Ld. Appellate Court, while reversing the judgment of conviction
passed by the trial Court, observed that probable defence has already been
taken by the accused by replying to the legal notice; that complainant had
failed to prove the existence of liability; that complainant was involved in
money lending business violating the provisions of Section 58 of the NI Act;
that signature on the cheque was made complete by overwriting and so,
Section 87 of the NI Act was attracted and that loan was for a period of 30
days as pleaded by the complainant and so, how within 10 days request
could have been made to return the loan.
36. After appraising the entire record, I find reasonings given by the
appellate Court to be absolutely irrelevant and based on conjectures and
surmises and by totally misappreciating the evidence on record.
37. As already noticed that despite receipt of the legal notice much
prior to the filing of the complaint as evident from AD card Ex.C5 and as
also candidly admitted by the accused, he did not respond to the legal notice
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and rather gave reply much after filing of the complaint and so said factor
could not have been taken into consideration. Once the signature on the
cheque were admitted by the accused in so many words, not only by making
positive suggestion to the complainant, but also in his statement under
Section 313 CrPC and then in his defence evidence, the existence of legal
liability remained not in dispute at all, in view of presumption under Section
139 of the NI Act. Simply because it was pleaded by the complainant that he
had given friendly loan of `1,75,000/- on interest @ 24% per annum, it
could not be concluded that complainant was indulging in money lending
business, particularly when he disclosed during cross-examination that he is
not having any case pending against any of his other friends. Section 58 of
the NI Act provides about the instrument obtained by unlawful means or for
unlawful consideration. The said provision is absolutely not applicable to the
facts of the present case, simply because complainant had given the loan of
`1,75,000/- against interest as was pleaded by him.
38. Section 87 of the NI Act provides about the effect of material
alteration. It reads as under: -
"87. Effect of material alteration. --Any material alteration of a negotiable
instrument renders the same void as against anyone who is a party thereto at the
time of making such alteration and does not consent thereto, unless it was made in
order to carry out the common intention of the original parties;
Alteration by indorsee. --And any such alteration, if made by an indorsee,
discharges his indorser from all liability to him in respect of the consideration
thereof. The provisions of this section are subject to those of sections 20, 49, 86
and 125."
39. Bare perusal of the aforesaid provision would clearly make it
out that it is applicable when any material alteration is made against the
consent of a party to the negotiable instrument.
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40. In the present case, the aforesaid provision was not at all
attracted simply because signature on the cheque was made complete by the
accused by overwriting on it. It was never the case of the accused that any
material alteration was made in the cheque against his consent by the
complainant or anybody else. Rather, he admitted his signature on the
cheque in so many words at various stages of the trial, as already noticed.
41. It is, thus, clear that ld. Appellate Court clearly mis-appreciated
the evidence and set aside a well reasoned judgment of conviction recorded
by the trial Court, on the basis of conjectures and surmises.
42. Consequent to the aforesaid discussion, the impugned judgment
of acquittal dated 26.02.2016 as passed by ld. Appellate Court is hereby set
aside; and the judgment of conviction as recorded by the trial Court on
16.01.2014 is hereby restored.
43. As far as restoration of order of sentence of the trial Court is
concerned, this Court does not find any infirmity in that order also. Apart
from the fact that accused concocted a false story so as to avoid his liability,
his conduct is also important to notice. As has already been noticed that
though process against the accused was issued by the Court of ld. JMIC on
30.07.2009 but despite service, he did not appear in the Court. He was
ultimately declared proclaimed person on 07.03.2012 and was produced by
the police on 19.03.2012. After the trial was concluded and his conviction
was recorded, his sentence was suspended for a period of 30 days to enable
him to file appeal before the Court and in the meantime, he was admitted to
interim bail vide order dated 16.01.2014. However, he neither filed appeal
within time nor surrendered before the trial Court and rather, absconded. His
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bail was cancelled and ultimately, he was produced by the police after
arresting him on 01.07.2015.
44. Having regard to the overall conduct of the accused-respondent,
he does not deserve any leniency. As such, the order dated 16.01.2014 qua
the quantum of sentence, as recorded by Ld. JMIC, is also hereby restored.
Respondent-accused is directed to surrender before the concerned trial
Court/ld. CJM Faridabad within a period of 15 days from today, failing
which the concerned Court will procure his presence by taking coercive
steps, in accordance with law, and send him to jail for carrying out the
sentence.
Disposed of.
A copy of the judgment be sent to the Court concerned.
(DEEPAK GUPTA)
02.11.2023 JUDGE
Vivek
1. Whether speaking/reasoned? Yes
2. Whether reportable? Yes/No
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