Punjab-Haryana High Court
Sahil Sindher vs Prem Wati Yadav on 25 November, 2024
Neutral Citation No:=2024:PHHC:154734
CRM A-1849-MA of 2017 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
230 CRM A-1849-MA of 2017
Date of Decision: 25.11.2024
Sahil Sindher ...Applicant
Versus
Prem Wati Yadav ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. B.S. Khehar, Advocate
for the applicant.
Mr. Rajesh Lamba, Advocate
for the respondent.
N.S.SHEKHAWAT, J. (Oral)
1. The applicant has filed the present application under
Section 378(4) Cr.P.C. with a prayer to grant special leave to appeal
against the impugned judgment dated 28.03.2017 passed by the
Judicial Magistrate 1st Class, Gurugram, whereby, the respondent was
ordered to be acquitted of the notice of accusation.
2. The brief facts of the complaint are that the applicant was
having good friendly relations with the respondent and her husband
and on the basis of their friendly relations respondent alongwith her
husband, approached to applicant for friendly loan to the sum of
Rs.3,50,000/- in the month of January, 2015 at applicant's office at
village Sadhrana, District Gurgaon as the respondent and her husband
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were in desperate need of the money for their business. The
respondent and her husband had further assured to the applicant that
they would refund the friendly loan amount within a period of four
months promptly without any further delay and default on their part.
Thereafter, the applicant believing upon respondent and her husband's
specious warranty and assurances, paid a sum of Rs.3,50,000/- in cash
to them. Even after the passage of four months when the respondent
and her husband did not turn up qua the repayment of the friendly
loan, then the complainant got perturbed and thereafter tried to
contact respondent and her husband, then, on meeting the respondent
and her husband, they assured the applicant that the payment would
be made very soon. Thereafter, the respondent and her husband in
discharge of their legal liability to repay the friendly loan amount,
had issued two cheques bearing No. 000015 & 000026 dated
09.02.2015 & 02.04.2015 of Rs. 40,000/- and 3,00,000/- drawn on
HDFC Bank, Ltd. Chandu Budhera Chowk, VPO Budhera, Gurgaon.
The cheque bearing No.000015 dated 09.02.2015 of Rs.40,000/- was
presented by applicant with his banker but the said cheque was
returned unpaid for the reason "Instrument Outdated". Another cheque
bearing No.000026 dated 02.04.2015 of Rs.3,00,000/- was got
dishonored upon presentation for reason "Funds Insufficient". When
the applicant approached the respondent and her husband, then they
failed to honour their liability. The applicant also issued a legal notice
dated 06.06.2015 by registered AD through his counsel. Thereafter,
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despite being served with legal notice the accused did not make the
payment within mandatory period of 15 days of the cheque amount.
Hence, the accused has committed the offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to
be referred as 'the Act')
3. After the preliminary evidence, the respondent was
summoned to face trial under Section 138 of the Act and the
complaint against the husband of the petitioner was ordered to be
dismissed.
4. After the summoning, the respondent appeared before the
trial Court and was served with notice of accusation under Section
138 of the Act.
5. In order to prove his complaint, applicant himself entered
into the witness box as CWI and tendered his duly sworn affidavit
(Ex.CWI/A) in evidence. In his documentary evidence, applicant has
tendered, original cheque Ex.CW1/B & Ex.CW1/C, return memos
Ex.CWI/D & Ex.CW1/E, legal notice Ex.CW1/F, postal receipts
Ex.CWI/G to Ex.CW1/J. CW2 Manish Kumar Branch Manager,
HDFC Bank brought the summoned record the account of respondent
Prem Wati wife of Sher Singh. He further deposed that cheque
Ex.CWI/B & Ex.CWI/C were issued by their bank from account
No.50100053002045 of the respondent. Cheque Ex.CW1/B was
dishonored due to "Funds Insufficient" the details of which were
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mentioned at point 'A' in bank statement. The detail of Cheque
Ex.CWI/C was at point 'B'.
6. Statement of respondent under section 313 Cr.P.C had
been recorded in which she pleaded to be innocent and denied all the
allegations levelled against her. She further stated that she did not take
any loan. It was false and fabricated complaint. The security cheque
had been misused which were taken at the time of bricks dealing. She
denied receiving of any legal notice. The respondent preferred to lead
evidence in defence. In defence respondent tendered document Ex.D1
& Ex.D2 and thereafter closed the defence evidence.
7. Learned counsel for the applicant submitted that the
applicant was having good friendly relations with the respondent and
her husband and they had approached him for friendly loan to the tune
of Rs. 3.50 lacs in the month of January 2015. On their appearance,
the loan was extended to them and in discharge of their liability they
had issued two cheques, however, the cheques were dishonoured on
presentation. He further contended that even the trial Court observed
that the execution of the cheques Ex. CW1/B and Ex. Ex.CW1/C had
been established on record. Moreover, the respondent had not denied
her signatures on the cheque. Since, the valid execution of the
signatures were admitted, the mandatory presumption of law was
there in favour of the applicant and the burden had shifted on the
respondent to disprove the allegations. Even, the respondent had
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taken a stand that she did not take any payment from the applicant,
rather the cheques in dispute were issued as security cheques at the
time of dealing of bricks. However, the respondent did not examine
any witness in advance and she had virtually admitted the issuance of
the cheques.
8. On the other hand, learned counsel for the respondent
submitted that the applicant had failed to give any detail when the
loan was given to the respondent. Even, he could not tell anything
about the business and his income. No ITR was placed on record and
even the applicant had no financial capacity to make the payment to
the respondent. Still further, the applicant had failed to prove any
valid liability on the part of the respondent and the impugned
judgment is legally unsustainable.
9. I have considered the rival submissions made by learned
counsel for the parties and perused the trial Court record carefully.
10. While discussing the scope of interference by the
Appellate Court, while dealing with the judgment of acquittal, the
Hon'ble Supreme Court held in the matter of Bhaskar Rao and
others Vs. State of Maharashtra AIR 2018 SC 2222:2018 (5) RCR
(Criminal 288) as follows:-
"14. As the trial Court and High Court, having
appreciated the evidence on record has come to
diametrically opposite conclusions, mandating herein to
observe certain witness statements which may have an
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important bearing in this case. In the processes of
appreciating the evidence at the appellate stage, we
need to keep in mind the views of this Court as expressed
in Tota Singh and Anr. Vs. State of Punjab, 1987 (2)
RCR (Criminal) 35:1987 CriLJ 974.
The High Court has not found in its judgment that the
reasons given by the learned Sessions Judge for
discarding the testimony of PW-2 and PW-6 were either
unreasonable or perverse. What the High Court has
done is to make an independent reappraisal of the
evidence on its own and to set aside the acquittal merely
on the ground that as a result of such re-appreciation,
the High Court was inclined to reach a conclusion
different from the one recorded by the learned Sessions
Judge. This Court has repeatedly pointed out that the
mere fact that the Appellate Court is inclined on a
re-appreciation of the evidence to reach a conclusion
which is at variance with the one recorded in the order
of acquittal passed by the Court below will not
constitute a valid and sufficient ground for setting aside
the acquittal. The jurisdiction of the Appellate Court in
dealing with an appeal against an order of acquittal is
circumscribed by the limitation that no interference is to
be made with the order of acquittal unless the approach
made by the lower Court to the consideration of the
evidence in the case is vitiated by some manifest
illegality or the conclusion recorded by the Court below
is such, which could not have been possibly arrived at
by any court acting reasonably and judiciously and is,
therefore, liable to be characterised as perverse: Where
two views are possible on an appraisal of the evidence
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adduced in the case and the court below has taken a
view which is plausible one, the Appellate Court cannot
legally interfere with an order of acquittal even if it is of
the opinion that the view taken by the Court below on its
consideration of the evidence is erroneous."
11. In Ramesh Babulal Doshi v. State of Gujarat, 1997(3)
RCR (Criminal) 62: 1996 CrilJ 2867, this Court observed as under:
"This Court has repeatedly laid down that the mere fact
that a view other than the one taken by the trial Court
can be legitimately arrived at by the appellate Court on
reappraisal of the evidence cannot constitute a valid and
sufficient ground to interfere with an order of acquittal
unless it comes to the conclusion that the entire
approach of the trial Court in dealing with the evidence
was patently illegal or the conclusions arrived at by it
were wholly untenable. While sitting in judgment over
an acquittal the appellate Court is first required to seek
an answer to the question whether the findings of the
trial Court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court
answers the above question is the negative the order of
acquittal is not to be disturbed."
12. In the present case, the applicant had appeared as a
witness in the witness box and his testimony has been discussed by
the trial Court in detail. The respondent had taken a plea that the
cheque was given by her as security for the brick dealing. From a
perusal of the testimony of the applicant, it is evident that he had
admitted the dealing of bricks with the husband of the respondent.
However, there was no evidence to show that there were friendly
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relations between the applicant and the respondent. The applicant
failed to disclose the name of the father of the respondent and he
admitted that he had never gone inside the house of the respondent.
He had no knowledge about the children, business, source of income
of the respondent. Even, he stated that he was filing the income tax
returns, whereas, he did not bring on record his ITR. He further stated
that he had given the loan in the month of January 2015 but he failed
to disclose the exact date and time, when the loan was advanced. He
stated that the loan was given for a period of four months and the
disputed cheques were given by the respondent after four months.
However, he could not tell the date and time, when the cheques were
given in April last, whereas, from a perusal of the cheques, it is
evident that the cheque No. 000015 bears the date of 09.02.2015.
Apart from that, the signatures of the respondent on the cheque are in
Hindi and with a different pen and the other particulars were in
English and with a different pen. All these facts when taken
cumulatively raised a big question mark on the veracity of the
statement made by the applicant himself. Apart from that, the
applicant could neither disclose the source from which the money was
arranged nor the mode of payment could be disclosed by him. Even,
the parties were having friendly relations and it is improbable that the
loan was given by the applicant to the respondent without executing
even a simple receipt. Apart from that, the applicant also failed to
examine any witness to show the payment to the respondent. Apart
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from that, the defence had raised a plea that the applicant was neither
capable nor in possession of sufficient funds to advance the loan.
13. At this stage, no doubt, the complainant is not required
to prove his financial capacity in the cases under Section 138 of the
Act, however, when the money is lent in cash and the accused had
issued the cheque in discharge of his legal liability and if the accused
challenges the financial capacity of the complainant to advance the
money, then despite presumption under Section 139 of the Act, the
complainant has a legal obligation to prove his financial capacity or
source of income in the beginning and the obligation only arises,
when his capacity or capability to advance the money is challenged
by the accused.
14. In the present case also, the transaction of loan is not
evidenced by the documentary evidence or reliable evidence. Thus, I
find that the trial Court had rightly held that the respondent had been
able to rebut the presumption of law, which had arisen in favour of the
applicant.
15. In view of the above discussion, I find no infirmity or
illegality in the impugned judgment passed by the trial Court. As a
consequence, the present application for special leave to appeal is
meritless and is liable to be declined.
16. Dismissed.
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17. Pending application(s), if any, also stand disposed off
accordingly.
25.11.2024 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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