Punjab-Haryana High Court
Subhash Chander vs Jagdish Rai & Ors on 13 November, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:151270
CRM-A-1367-MA-2016 (O&M) -1-
225 2024:PHHC:151270
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-23166-2016 In/And
CRM-A-1367-MA-2016
RESERVED ON: 12.08.2024
PRONOUNCEMENT ON : 13.11.2024
SUBHASH CHANDER
.....APPELLANT
VERSUS
JAGDISH RAI AND ORS
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Kuldeep khandewal, Advocate
for the applicant/appellant.
Mr. T.C. Dhanwal, Advocate
for respondents No.1 to 4.
****
SANDEEP MOUDGIL, J (ORAL)
CRM-23166-2016
Delay condoned.
Application Allowed
CRM-A-1367-MA-2016
1. The appeal under Section 378(4) CrPC has been filed by the
appellant seeking leave to appeal against the judgment dated 09.03.2016
passed by Judicial Magistrate, First class, Hisar(in short, 'trial court') vide
which respondent has been acquitted under section 138 of Negotiable
Instruments Act 1881, (in short, 'the NI Act'), on the ground that the
appellant has miserably failed to bring home the guilt of the respondent-
accused.
1 of 5
Neutral Citation No:=2024:PHHC:151270
CRM-A-1367-MA-2016 (O&M) -2-
2. Briefly put forth, the facts of the case are that the appellant
became member of the respondent no.4 society I.e Hisar Urban Area
Cooperative Non-Agriculture thrift and credit society limited, 299 Urban
estate-II, Hisar vide membership no. 177 wherein it has been alleged that the
appellant had borrowed a sum of Rs.15,000/- from the respondent no.4
society while giving four blank signed cheques as a security to Respondent
no. 1 i.e the Secretary of the society and simultaneously Respondent no.1
and Respondent no.3 i.e President of the society had obtained appellant's
signatures on few blank papers. Further, it is alleged that the appellant had
been repaying the amount in installments from time to time which is evident
from Ex. P2 to Ex. P35 but the respondents use to mention the due amount
on higher side only to extort more money from the appellant and on raising
this objection, became a victim of their criminal conspiracy wherein the
respondents with mala fide intention got dishonoured the cheques bearing
no. 546081 and 546082 dated 28.01.2006 for an amount of 1,30,000/- each
which led to filing of complaint against the appellant under section 138 of
Negotiable Instruments Act, 1881 wherein he got acquitted vide judgment
dated 09.12.2014.
Howerever, on 05.09.2009, during the trial proceedings of the
above mentioned complaint cases, the witnesses were summoned from the
respondent society who produced the copies of receipts i.e Ex. D2 to Ex.
D35 of the installment paid by the appellant which were duly issued by
Respondnet no. 2 I.e the clerk on behalf of Respondent no.4 society and
thereafter the appellant also produced the original receipts as Ex. D36 to Ex.
D72. By virtue of receipts Ex. D2 to D35, the respondnets had adjusted the
installment amount received from the appellant into the account of some
2 of 5
Neutral Citation No:=2024:PHHC:151270
CRM-A-1367-MA-2016 (O&M) -3-
other person which compelled him to file a complaint against the
respondents under sections 193, 406, 420, 465, 466, 468, 471, 477-A, 120-B,
IPC Police Station civil lines Hisar vide judgment dated 09.03.2016, they
were acquitted,. Hence, the present appeal.
3. Counsel for the appellant contends that the trial court failed to
appreciate the evidence produced as E. D7 to Ex.D10, that the alleged
account lodger maintained by the respondent society does not bear the name
of the society as its head note therefore is not reliable.
4. He further contends that the trial court has wrongly admitted the
contention of the respondent society wherein it is stated that the respondent
society had replaced the membership numbers with the account numbers in
order to rule out any confusion.
5. He vehemently argues that the trial court has failed to
acknowledge that Respondent no. 1 to 3 are family members to each other
and running the above said society in their own residence which gives them
privilege to tamper with any document for their own convenience.
6. Per contra, counsel for the respondents contends that the
appellant had taken a false stand of borrowing only Rs. 15000/- whereas he
had borrowed a loan of Rs. 64000/- which is evident from the cheques Ex.
D13 to Ex. D16 which were duly encashed by the appellant. He further
contends that ledger book is a normal practice of maintaining the record of
the society therefore no illegality can be found in the said record. Rather, the
complaint case filed by the appellant was only a counter blast to the two
complaints against him under section 138 of Negotiable Instruments Act,
1881.
3 of 5
Neutral Citation No:=2024:PHHC:151270
CRM-A-1367-MA-2016 (O&M) -4-
7. Having heard learned counsels for the respective parties and
going through the case file, this Court is of the considered opinion that there
is no illegality or infirmity in the judgment passed by the trial court.
8. It is evident from the record in hand, that by virtue of Ex. D23,
the appellant had notice of his serial no.183 in the register wherein he tried
to reflect that the same same document stands false since he it mentions his
name as Subhash Chander whereas he writes his name as Subhash Jangra
which is a clear cut attempt to twist the existing fact only to play fraud with
the court. Further, the appellant never raised any objection over this issue
meaning thereby, the testimony of PW1 stands corroborated on the point of
change of membership numbers with account numbers.
9. In the instant case, the evidence on record does not show that
any entrustment of money was made by the appellant to the respondents,
rather it was only a repayment of loan of the money which actually belonged
to the respondents. Moreso, the element of misappropriation is also absent as
the payments made by the appellant had been credited to his loan account
no. 183 added with the fact that the appellant had not stated specifically the
amount deposited by him with the respondents and the amount adjusted by
the respondents in some other account.
10. The allegation against the respondents qua section 420 IPC does
not stand proved by the appellant since he failed to establish as to when he
deposited the instalment amount and the respondents has a dishonest
intention at the very inception of the transaction which is sine qua non to
attract section 420 IPC and the same finds its support in the judgment of this
court in "Davinder Kaur vs State of Punjab and ors 2006(3) RCR Criminal
190" wherein it has been held that:-
4 of 5
Neutral Citation No:=2024:PHHC:151270
CRM-A-1367-MA-2016 (O&M) -5-
"the dishonest and fraudulent intention must be in
existence at the very inception of the transaction"
11. Also, in " Parminder Kaur vs State of U.P and another
2009(4) RCR Criminal 844" the Apex court while throwing light on the
aforementioned issue has held that:-
"If the document is to be altered it has to be for some
gain or such objective on the part of the accused. Merely,
changing a document does not make it a false
document."
12. In the instant case, the mentioning of account no. 183 and
ledger folio number is not an altercation of the document for the purpose of
any gain. Therefore, the appellant has miserably failed to prove its case on
the fact that the account no. 183 does not pertain to him and secondly,by the
entry made over the receipts either some prejudice has been caused to him or
some wrongful gain was received by the respondents.
13. In the light of the above, taking into consideration the record in
hand coupled with the settled proposition of law in Devinder's case(supra),
this Court is of the considered view that no fault can be found with the
judgment passed by the trial court dated 09.03.2016 and as such , having no
merit, the appeal stands dismissed.
14. Accordingly, ordered.
(SANDEEP MOUDGIL)
13-11-2024 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
5 of 5
