Punjab-Haryana High Court
Krishan Kishore Sharma vs Guru Nanak Foundry & Engineering Works ... on 3 April, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:045685
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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CRM-A-1736-MA-2017 (O&M)
Reserved on 18.01.2024
Pronounced on 03.04.2024
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Krishan Kishore Sharma ... Applicant
VS.
Guru Nanak Foundry & Engineering Works & Anr. ... Respondents
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CORAM: HON'BLE MR.JUSTICE SANDEEP MOUDGIL
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Present: Mr. Ravi Dutt Sharma, Advocate for the applicant
Mr. Parmod Chauhan, Advocate for the respondents
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Sandeep Moudgil, J.
This application under Section 378(4) CrPC has been filed by
the applicant seeking leave to appeal against the judgment dated 03.06.2017
passed by JMIC, Kaithal (in short, 'the trial court'), vide which the
respondent has been acquitted in a complaint filed by the applicant under
Section 138 of the Negotiable Instruments Act, (in short, 'the NI Act').
Brief facts of the case are that the accused in discharge of his
debt/liability issued the cheque bearing no. 745193 dated 04.08.2014 drawn
upon Punjab National Bank Jind Road, Kaithal in the favour of complainant
on 04.08.2014, however, the same was dishonoured on the ground of "Funds
Insufficient" in the account of accused. A legal notice dated 11.08.2014 was
issued which the accused refused to accept. Despite notice, the accused has
failed to make the payment of the cheque amount to the complainant and in
this manner the accused have committed the offence punishable under section
138 of Negotiable Instrument Act. The complainant filed a complaint under
Section 138 of the NI Act before the trial court and the trial court vide
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impugned judgment dated 03.06.2017 acquitted the accused of the notice of
accusation. Hence, the complainant has filed the present appeal.
Learned counsel for the complainant contended that the trial
court failed to appreciate the evidence led by the complainant to prove the
guilt of the accused. He further submitted that the trial court has failed to
appreciate the fact that while taking advance from the complainant, the
accused also issued a receipt dated 27.7.2014 Ex.C1 wherein the accused has
acknowledged the loan of Rs.2,25,000/- and has also acknowledged that the
cheque in question has been issued for the payment of the loan taken by the
accused from the complainant.
It is further argued that the accused had admitted his signature
over the said receipt Ex.C1 but the trial Court did not rely upon the said
receipt on the ground that there is no witness over the said receipt and further
that the said receipt has not been got proved by the complainant. He further
averred that while appearing as a witness in this case as CWI, the
complainant duly proved the said receipt and the findings of trial Court to this
effect is erroneous.
I have heard learned counsel for the applicant and gone through
the case file.
Sections 138 and 139 of the said NI Act requires that the Court
'shall presume' the liability of the drawer of the cheque(s) for the amount for
which the cheque(s) is drawn. It is obligatory on the Court to raise this
presumption in every case where the factual basis for the raising of the
presumption has been established i.e. execution of cheque(s) by the accused.
It introduces an exception to the general rule as to the burden of proof in
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criminal cases and shifts the onus on to the accused. Such a presumption is a
presumption of law as distinguished from a presumption of fact which
describes provisions by which the court may presume a certain state of
affairs.
Once execution of the cheque is proved/admitted, the
presumptions u/s 118(a) and 139 of the said Act would arise that it is
supported by a consideration. Such presumptions are rebuttable in nature and
the accused can prove the non-existence of a consideration by raising a
probable defence, and if the accused is proved to have discharged the initial
onus of proof showing that the existence of consideration was improbable or
doubtful or the same was illegal, the onus would shift to the complainant who
will be obliged to prove it as a matter of fact and upon its failure to prove
would dis-entitle him to the grant of relief on the basis of the negotiable
instrument. It is settled proposition of law that the complainant must prove
the guilt of an accused beyond all reasonable doubt, however, the standard of
proof so as to prove defence on the part of an accused is 'preponderance of
probabilities' and inference of preponderance of probabilities can be drawn
not only from the materials brought on records by the parties but also by
reference to the circumstances upon which he relies.
The trial court rightly observed that to make a person criminally
liable, the cheque must have been issued in discharge of whole or any part of
debt of liability. Amount written in cheque corrected in figures or in number
without the knowledge and consent of maker of the cheque amounts to
material alteration and also amounts cancellation. The figure "2" was
specifically inserted in cheque Ex.C3 specifically without the knowledge of
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the drawer is a material alteration which makes the documents void. Once the
negotiable instrument is found to be void, it cannot be held that any legal
recoverable debt is due from the maker of that document. The alteration in the
document Ex.C3 is well proved by the evidence of handwriting expert and the
report is well proved by accused Ex.DW3/B.
In the present case, the accused has denied the existence of any
existing legal liability. If the cheque was issued by the accused then also
keeping in view the material alteration in the cheque, the instrument becomes
void and the accused is not liable for any type of legal recoverable debt. The
receipt issued on the letter pad of the shop of accused is also not proved the
liability of the accused in any manner as no witness regarding the receipt is
on the letter pad and without any witness the document did not prove any
type of liability towards the accused. There is nothing is on file to prove any
type of transaction or debt to held the accused liable under section 138 of
Negotiable Instrument Act. Moreover, the accused has denied that he never
issued the cheque in favour of the complainant to pay back any debt or issued
the receipt regarding any type of loan amount or transaction.
In view of the above discussion, this Court is of the considered
view that there is no infirmity, perversity and illegality in the judgment
passed by the trial court and as such the present application under Section
378(4) of CrPC, seeking leave to appeal, is dismissed.
03.04.2024 (Sandeep Moudgil)
V.Vishal
Judge
1. Whether speaking/reasoned? Yes/No
2. Whether reportable? Yes/No
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