Punjab-Haryana High Court
Sandeep Kumar vs Mahavir on 4 September, 2023
CRM-A-1658-2019 (O&M) -1-
2023:PHHC:117794
235 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-A-1658-2019 (O&M)
Decided on : 04.09.2023
Sandeep Kumar ...... Applicant
Versus
Mahavir ...... Respondent
CORAM : HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Present : Ms. Divya Narula, Advocate for
Mr. Ajay Arora Bharti, Advocate
for the applicant.
****
Manjari Nehru Kaul, J.(Oral)
CRM-23326-2019
Application is allowed as prayed for and delay of 118 days in
filing the application stands condoned.
Main case
The applicant-complainant(hereinafter referred to as
'complainant) is impugning the judgment and order dated 29.01.2019
passed by Ld. Judicial Magistrate I Class, Ellenabad wherein respondent-
accused (hereinafter referred to as 'accused) was acquitted of the charges
framed against him in a complaint No.104-2/2017, CIS
No.NACT/191/2017 under Section 138 of the Negotiable Instrument Act,
1881 (hereinafter referred to as 'the Act').
SONIA BURA
2023.09.09 14:36
I attest to the accuracy and
integrity of this document
CRM-A-1658-2019 (O&M) -2-
2023:PHHC:117794
2. As per the allegations levelled in the complaint in question, the
accused borrowed a sum of Rs.2,90,000/- from the complainant. After
repeated requests made by the complainant to the accused to repay the
aforementioned loan, the accused issued a cheque bearing No.117792
dated 01.03.2017 for a sum of Rs.2,90,000/- in favour of the complainant.
However, on presentation of the said cheque by the complainant, it was
returned back vide return memo dated 24.03.2017 with the remarks "Funds
Insufficient". The complainant thereafter sent a legal notice dated
05.04.2017 calling upon the accused to make the payment but in vain.
3. The Trial Court on the basis of evidence and other material
led, acquitted the accused by holding that the complainant had miserably
failed to prove the case against the accused as no evidence much less
cogent was led by the complainant to prove the existence of legally
enforceable debt whereas the accused, on the other hand, had been able to
successfully rebut the presumption under Section 139 of the Act.
4. Learned counsel appearing for the applicant-complainant has
reiterated the allegations levelled in the complaint in question by asserting
that an amount of Rs.2,90,000/- was borrowed by the accused from him on
various dates. Learned counsel has submitted that the Court below had
failed to appreciate that once the accused had not disputed his signatures
on the cheque in question, therefore, a presumption under Section 118 and
139 of the Act would arise in favour of the cheque-holder, which the
SONIA BURA
2023.09.09 14:36
I attest to the accuracy and
integrity of this document
CRM-A-1658-2019 (O&M) -3-
2023:PHHC:117794
accused had failed to rebut during trial. Learned counsel has vehemently
argued that the Trial Court had not appreciated the evidence in the right
perspective and also ignored the settled law by drawing an adverse
inference against the complainant on the ground that there was no written
agreement executed between the parties qua the alleged transaction.
5. Heard learned counsel for the applicant and perused the
relevant material available on record.
6. A perusal of the judgment passed by the Court below reveals
that there are material contradictions in the testimony of the complainant
viz-a-viz the averments made by him in his complaint. Admittedly, no
documentary evidence much less any relevant entries in any account
books/bahi was produced during trial by the complainant in support of his
pleaded case that a sum totaling Rs.2,90,000/- was ever advanced by him.
All this needs to be appreciated in the background of the admitted case of
the complainant that as and when he loaned some amount of money to
persons, he would record the same in his bahi. While stepping into witness
box as PW-1 the complainant specifically admitted documents Exhibit DA
and DB, which are photocopies of writings executed relating to some
transactions, which took place between him and the accused. A perusal of
Ex.DA reflects that it had been recorded therein that the cheque in question
i.e. cheque bearing No.117792 had been handed over to complainant in the
year 2015. Hence, in the circumstances, once the cheque had been handed
SONIA BURA
2023.09.09 14:36
I attest to the accuracy and
integrity of this document
CRM-A-1658-2019 (O&M) -4-
2023:PHHC:117794
over to the complainant in the year 2015, there was no question of issuing
that very cheque on 01.03.2017. Still further, a perusal of the complaint
reveals that no time or date was mentioned as to when the loan had been
advanced nor any witness of the alleged transaction between the parties
before whom the loan was advanced, was produced. No doubt, the
complainant did examine PW-2 Mahender Narayan but the said witness
was not an eyewitness. Furthermore, a civil suit was also initiated by the
complainant against the accused for recovery of Rs.3,08,000/-. In the suit,
the complainant had, on the other hand, claimed to have advanced
Rs.1,98,000/- to the accused in the year 2015. In the aforementioned facts
and circumstance, it does cast a shadow of doubt on the credibility of the
complainant's version.
7. As a sequel to the above, this Court concurs with the
observations made by the Court below that the complainant has failed to
prove his case while the accused has successfully rebutted the presumption
under Section 139 of the Act. Accordingly, the present application stands
dismissed.
(MANJARI NEHRU KAUL)
JUDGE
04.09.2023
sonia
Whether speaking/reasoned: Yes/No
Whether reportable : Yes/No
SONIA BURA
2023.09.09 14:36
I attest to the accuracy and
integrity of this document
