Punjab-Haryana High Court
Manjit Singh vs Ashok Kumar Shukla on 12 September, 2023
Neutral Citation No:=2023:PHHC:119829
CRM-A-508 of 2023 2023:PHHC:119829 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRM-A-508 of 2023
Date of decision:12th September, 2023
Manjit Singh
Applicant
Versus
Ashok Kumar Shukla
Respondent
CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN
Present: Mr. Rahul Sharma-I, Advocate for the applicant.
AVNEESH JHINGAN, J (Oral):
1. This is an application under Section 378(4) Cr.P.C. seeking
leave to appeal against judgment of acquittal in Criminal Complaint No.
12312 of 2017, under Section 138 of the Negotiable Instruments Act, 1881
(for short, 'the Act').
2. The brief facts as per the complainant (applicant herein) are
that during February, 2013 to March, 2015 respondent (Ashok Kumar
Shukla) borrowed a loan of Rs.14,50,000/- from the applicant. For
repayment of part of loan, the respondent issued a cheque bearing No.
645843 dated 3.7.2017 amounting to Rs.3,00,000/-. On presentation the
cheque was dishonoured with the remarks "funds insufficient". After
issuance of legal notice, the complaint was filed.
3. The respondent took defence that loan of Rs.3,00,000/- was
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borrowed from the applicant in the year 2012 and the cheque was given as
security. The loan was repaid from July, 2016 to December, 2016 but the
applicant did not return the cheque stating that it was mis-placed and later
misused it. Second defence was that the respondent had never taken loan of
Rs.14,50,000/- from the applicant, rather the amount credited in his account
in the years 2014-15 was to be utilised by one Vakil Thakur. Further that
the respondent and his wife had never issued three cheques of Rs.4,50,000/,
Rs.6,00,000/- and Rs.4,00,000/-. The respondent to substantiate the defence
examined Mandeep, Clerk in Punjab National Bank, Branch Sector 16-D,
Chandigarh. He deposed that the cheque in question was the first cheque
from cheque book No. FBP/645831 issued on 18.8.2011 and thereafter two
cheque books were issued on 14.6.2013 and 24.6.2014. Nutan Thakur
widow of Vakil Thakur was examined as DW1. She supported the defence
of the respondent stating that the amount credited in the account of the
respondent was utilised by her deceased husband who cleared the loan
during his life time.
4. The applicant himself stepped into the witness box and stated
that the cheque was issued by the respondent to clear the outstanding
installments in pursuance to the compromise dated 16.7.2016. He
substantiated the filing of complaint with the police and the statements
made before SSP, Mohali for clearing the loan amount of Rs.14,50,000/- in
monthly instalments of Rs.50,000/-.
5. Learned counsel for the applicant submits that signature on the
cheque was not disputed. The statement recorded in the office of SSP,
Mohali is relied upon to contend that the respondent had to make payment
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of Rs.50,000/- per month to clear the loan of Rs.14,50,000/-.
6. The law is well-settled that the presumptions under Sections
118 and 139 of the Act in favour of the holder of the cheque are rebuttable.
There is no dispute on the proposition that rebuttal of presumption is not to
the extent of proving beyond reasonable doubt but has to be on principle
of probabilities and preponderance. On rebuttal of the presumption, the
onus shifts on the complainant.
7. The Supreme Court in Vijay v. Laxman and another, 2013
(2) JT 562 held as under:
"We are not unmindful of the fact that there is a presumption
that the issue of a cheque is for consideration. Sections 138
and 139 of the Negotiable Instruments Act make that
abundantly clear. That presumption is, however, rebuttable in
nature. What is most important is that the standard of proof
required for rebutting any such presumption is not as high as
that required of the prosecution. So long as the accused can
make his version reasonably probable, the burden of
rebutting the presumption would stand discharged. Whether
or not it is so in a given case depends upon the facts and
circumstances of that case. It is trite that the courts can take
into consideration the circumstances appearing in the
evidence to determine whether the presumption should be
held to be sufficiently rebutted. The legal position regarding
the standard of proof required for rebutting a presumption is
fairly well settled by a long line of decisions of this Court".
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8. It was considered that as per the applicant, loan of
Rs.14,50,000/-was taken during February, 2013 to March, 2015. In order to
clear the loan, three cheques amounting to Rs.4,50,000/-, Rs.6,00,000/- and
Rs.4,00,000/- were issued, one by wife of the respondent and two by the
respondent, on presentation the cheques were dishonoured. On a complaint
made to the police, the matter was compromised on 16.7.2016 and
thereafter respondent paid Rs.50,000/- per month only till December,
2016. To clear the six outstanding installments, the cheque in question
was issued. The court concluded that the respondent was successful in
rebutting the presumptions under Sections 118 and 139 of the Act. It was
noted that the cheque in question issued to the applicant on 3.7.2017 was
from a cheque book issued on 18.8.2011, whereas thereafter two more
cheque books were issued subsequently. The applicant faultered in the
cross examination. As per the version in the complaint the cheque in
question was handed over on 13.7.2017 before the police authorities,
whereas in cross-examination the applicant stated that the cheque was
handed over in May, 2016 in the market of Naya Gaon i.e. before making
the police complaint. The version of the applicant was found doubtful. The
deposition of Nutan Thakur-DW1 fortified the defence of the respondent
that the amount credited in the account of the respondent was for Vakil
Thakur and that she had made a statement to this effect before the police
authorities during the enquiry of the complaint. The non-production of three
cheques allegedly issued by the wife of the respondent and the respondent
created a dent on the case set up by the applicant. It was considered that
neither complaint under Section 138 of the Act was filed nor notice was
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given on dishonouring of the three cheques. Further that in the legal notice
issued on dishonouring of the cheque in question, there was neither
mention of the total loan given to the respondent nor of issuance three
cheques. The respondent was acquitted on failure of the applicant to prove
the case.
9. It is undisputed that the respondent was successful in rebutting
the presumptions and the onus shifted upon the applicant to prove existence
of legally enforceable debt on the date of presentation of cheque. The
reliance on the statement dated 16.7.2016 does not enhance the case for
proving the default in payment of monthly installments and that the
amount of Rs.3,00,000/- was due from the respondent on the date of
presentation of the cheque.The issuance of cheque in 2017 from a cheque
book issued in 2011, more-so when two cheque books were issued to the
respondent thereafter make the version of the applicant doubtful.
10. It would not be out of place to mention that there was material
variation between the contents of the complaint and cross-examination of
the applicant vis-a-vis the date and the place of handing over the cheque. In
cross-examination, it was stated that the cheque was handed over in May,
2016 i.e. prior to making of police complaint in pursuance to which the
alleged statement dated 16.7.2016 was recorded. This variation is fatal as
in May, 2016 there was no default of monthly installment to be paid in
pursuance to the statement.
11. No case is made out for interference in the impugned judgment,
as no legal or factual error much less perversity has been pointed out.
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12. The application is dismissed.
[AVNEESH JHINGAN]
JUDGE
12th September, 2023
mk
1. Whether speaking/ reasoned : Yes / No
2. Whether reportable : Yes / No
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