Punjab-Haryana High Court
Rajesh Sharma vs Rakesh Sharma on 23 September, 2024
Neutral Citation No:=2024:PHHC:126937
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
114
CRM-A-7-MA-2015
Date of Decision: 23.09.2024
Rajesh Sharma ... Applicant
Versus
Rakesh Sharma ... Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present: Mr. Parveen Sharma, Advocate,
for the applicant.
Mr. Rajesh Bansal, Advocate,
for the respondent.
***
MANISHA BATRA, J. (Oral)
1. This order shall dispose of an application for grant of leave
to file appeal against the judgment dated 12.11.2014 passed by the Court
of Judicial Magistrate, 1st Class, Panipat in Criminal Complaint bearing
CIS No.NACT/1000/2014 titled as Rajesh Sharma v. Rakesh Sharma,
whereby the complaint filed by the applicant was dismissed and
respondent-accused was acquitted of charge under Section 138 of
Negotiable Instruments Act, 1881 (For short "NI Act").
2. For the sake of continuity and coherence, parties shall be
referred to hereinafter as per the same nomenclature as given before the
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trial Magistrate.
3. Brief facts of the case relevant for the purpose of disposal of
this application are that the aforementioned complaint had been filed by the
complainant Rajesh Sharma on the allegations that on 15.12.2008, he had
lent an amount of Rs.3,75,000/- to the accused with whom he was having
friendly relations. The accused had agreed to return the said amount within a
period of 8-9 months. After expiry of the said period, the complainant
approached the accused and told him to repay the amount so borrowed but
he did not do so and after putting of the matter for sometime, he expressed
inability to pay the amount so borrowed and to discharge his liability, issued
a post dated account payee cheque bearing No.582185 dated 01.09.2009 for
a sum of Rs.3,75,000/-. The complainant presented the said cheque with his
bank for realization of the same. However, this cheque was received back
dishonoured with the remarks "funds insufficient". The complainant
contacted the accused who assured to pay the amount of cheque in cash but
did not do so thereby compelling the complainant to serve a legal notice
dated 22.03.2010 upon the accused. Since the accused still did not make
payment or respond to the notice, therefore he filed the aforementioned
complaint.
4. On considering the preliminary evidence produced on record
and on finding a prima facie case, the accused was ordered to be summoned
for commission of offence punishable under Section 138 of NI Act. He
appeared in response to the summons. Notice of accusation was served upon
him. He pleaded not guilty to the same and claimed trial.
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5. To substantiate his claim, the complainant examined himself as
CW-1 and in his sworn affidavit Ex.CW1/A reiterated the allegations in the
complaint. In documentary evidence, he produced Ex.C1 original cheque
dated 01.09.2009, Ex.C2 return memo dated 26.02.2010 and Ex.C3 copy of
legal notice dated 22.03.2010.
6. Statement of accused under Section 313 of Cr.P.C. was
recorded separately wherein the accused abjured his guilt. He denied his
signatures on the cheque in question and also denied receipt of any legal
notice and claimed to be innocent. In defence evidence, he examined one
witness besides placing reliance upon certain documentary evidence.
7. After going through the evidence produced on record and
considering the contentions raised by both the sides, the learned Magistrate
dismissed the complaint and acquitted the accused by observing that the
complainant had failed to prove that he had advanced a sum of Rs.3,75,000/-
to the accused and the accused had been able to rebut the presumption drawn
in favour of the complainant. It was further observed that no written legal
notice was proved to have been sent to the accused.
8. Feeling aggrieved, the present application has been filed by the
applicant making prayer for granting him leave to file appeal against the
order of acquittal.
9. It is argued by learned counsel for the applicant that the
impugned judgment dated 12.11.2014 is liable to be set aside as the findings
as given by learned trial Court are not sustainable in the eyes of law, the
same being perverse and not based upon proper appreciation of the evidence
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produced on record. It is argued that there was overwhelming evidence on
record to prove that the complainant had given an amount of Rs.3,75,000/-
to the accused by way of friendly loan and to discharge his liability of
repaying the said amount, the accused had issued a cheque in favour of the
complainant which stood dishonoured. The accused had not specifically
denied his signatures over the cheque in question. He has failed to prove as
to under what circumstances, the cheque belonging to him had been handed
over to the complainant. The complainant had proved that the amount of
Rs.3,75,000/- was available with him as he has sold his land for a sum of
Rs.2,20,000/- on 27.05.2008. The defence plea was totally improbable and
untrustworthy. The legal notice dated 22.03.2010, had been duly proved in
evidence but the learned trial Court wrongly held that no such notice was
issued. With these broad submissions, it is urged that the impugned
judgment of acquittal is liable to be set aside and, therefore, it is urged that
the application be allowed and leave to file appeal and pursue the same
against the same judgment, be granted to the complainant.
10. Per contra, learned counsel for the respondent-accused has
vehemently argued that the findings as given by the learned trial Magistrate
are well reasoned and do not require any intervention. It is submitted that the
applicant-complainant failed to produce and prove in evidence any postal
receipt pertaining to issuance of legal notice dated 22.03.2010 and as the
issuance of such notice was a condition precedent for filing of complaint
against the respondent-accused which had not been complied with by the
complainant, therefore, the learned trial Magistrate has rightly dismissed the
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complaint. He further argued that the evidence produced on record by the
applicant-complainant was not at all sufficient to prove that he had indeed
advanced a sum of Rs.3,75,000/- to the respondent-accused. No
documentary evidence qua giving this much amount had been produced on
record nor the complainant was able to show that he was having that much
amount of money with him. His annual income itself was only between Rs.2
lakhs to Rs.2.25 lakhs at the relevant time and it cannot be assumed that he
was in a position to lend the amount of Rs.3,75,000/- to the accused.
Accordingly, it is urged that the application is liable to be dismissed.
11. I have heard learned counsel for the parties at considerable
length and have perused the trial Court record.
12. The claim of the applicant-complainant is that the respondent-
accused had borrowed amount of Rs.3,75,000/- from him on 15.12.2008 and
in lieu thereof, he had issue cheque Ex.C1 in his favour as on 01.09.2009
which was dishonoured. According to him, since the respondent-accused
failed to respond to the legal notice and to repay the amount of cheque,
therefore, he was prosecuted under Section 138 of NI Act and was liable to
be punished thereunder.
13. To prove a case for commission of offence under Section 138 of
NI Act, the complainant was required to establish that the accused had
drawn a cheque on an account maintained by him with a bank, for payment
of any amount of money to the complainant from out of that account for the
discharge, in whole or in part of any debt or other liability which was legally
enforceable. It was further required to be proved by him that the said cheque
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was presented to the bank within a period of six months from the date when
it was drawn and the same was returned unpaid by the bank either because
of insufficiency of money or due to exceeding of the amount arranged to be
paid from that account. As per Section 138 of NI Act, if the payee of the
amount of cheque makes demand for payment of the amount of money by
giving a notice in writing to the drawer of the cheque within 30 days of the
receipt of information by him regarding dishonour of the cheque, and the
drawer of the cheque fails to make payment of the said amount of money
within 15 days of receipt of such notice, then a complaint under Section 138
of the NI Act is maintainable.
14. It is clear from a bare perusal of the contents of Section 138 of
NI Act that issuance of a notice in writing to the drawer of the cheque within
a period of 30 days from the date of information regarding dishonour of the
cheque is must. In the instant case, though the applicant produced before the
learned trial Court Ex.C3 copy of legal notice dated 22.03.2010 but did not
produce any postal receipt regarding sending such notice in writing to the
respondent-accused. Rather a perusal of the trial Court file reveals that an
application had been filed during trial by the present applicant for granting
him permission to produce by way of additional evidence, the copy of postal
receipt to prove that he had issued legal notice on 22.03.2010. This
application had been allowed vide order dated 29.10.2013 and opportunity
was granted to the applicant to prove postal receipt by way of additional
evidence. It is, however, revealed from a perusal of subsequent orders
passed before the trial Magistrate that the applicant failed to produce any
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additional evidence on that point and ultimately the same was closed.
Meaning thereby the applicant failed to prove that infact any legal notice had
been issued by him to the respondent. Since, the issuance of such notice in
writing was a mandatory pre condition for filing of complaint under Section
138 of NI Act and maintainability thereof and as that condition had not been
proved to be fulfilled, therefore, in the considered opinion of this Court, the
learned Magistrate rightly observed that the essential ingredient for making
out a case for commission of offence punishable under Section 138 of NI
Act was missing.
15. Proceeding further, the learned Magistrate had observed that the
applicant had failed to prove that he had advanced a sum of Rs.3,75,000/- to
the respondent-accused and the respondent-accused had issued a cheque to
discharge his legally enforceable debt. The learned Magistrate observed that
the applicant had admitted that his annual income was only between Rs.2
lakhs to Rs.2.25 lakhs at the relevant time. He had failed to produce any pass
book before the Court to show that he had indeed advanced a sum of
Rs.3,75,000/-. No receipt had been obtained by him from the respondent to
show the advancement of this much amount. He had also failed to prove that
he had taken any security from the respondent in lieu of the loan amount.
The learned trial Court had made a detailed discussion on this point and in
the opinion of this Court had rightly observed that the applicant had failed to
prove that the cheque in question was issued by the respondent to discharge
his legally enforceable debt.
16. As per the above discussed facts, no manifest illegality or
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irregularity can be stated to have been committed by the learned Magistrate
while recording findings of acquittal of the respondent-accused. As such,
this Court is of the considered opinion that no ground has been made out for
allowing this application and granting leave to file appeal against the
judgment rendered by the learned Magistrate which is well reasoned.
Accordingly, finding no no merit, the application is dismissed.
(MANISHA BATRA)
23.09.2024 JUDGE
manju
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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