Punjab-Haryana High Court
Hoshiyar Singh vs Ajit Saini on 24 January, 2025
Author: Manjari Nehru Kaul
Bench: Manjari Nehru Kaul
Neutral Citation No:=2025:PHHC:013239
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
110 CRM-A-1351-MA-2016 (O&M)
Date of decision: 24.01.2025
Hoshiar Singh
....Petitioner
V/s
Ajit Saini
....Respondent
CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Present: Mr.P.S.Jammu, Advocate with
Mr.Anirudh Malhan, Advocate, for the appellant.
Mr.Amandeep Vashisth, Advocate,
for the respondent.
*****
MANJARI NEHRU KAUL, J. (ORAL)
1. The appellant-complainant (hereinafter referred to as the
complainant) has challenged the judgment dated 08.10.2015, passed by the
learned Judicial Magistrate Ist Class, Jind, whereby the respondent-
accused (hereinafter referred to as the accused) was acquitted of the
charges framed against him under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as 'the NI Act').
2. As per the allegations in the complaint, the accused borrowed
a sum of Rs.9,15,000/- from the complainant in January 2011 with the
promise to repay the same. Upon his failure to do so, the accused issued a
cheque bearing No.12419698 dated 20th of April 2011 for Rs.9,15,000/-,
drawn on the Jammu and Kashmir Bank Ltd. Hissar. However, when the
complainant presented the cheque for encashment, it was dishonoured and
returned with a return memo dated 21st of September 2011. Consequently
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the complainant issued a legal notice dated 15th of October 2011, calling
upon the accused to make the payment. Despite this, the accused failed to
comply.
3. The trial Court, after examining the evidence and material on
record, acquitted the accused, holding that the complainant had failed to
substantiate his case. Specifically, the trial Court observed that no credible
evidence was produced to establish that the cheque in question was issued
by the accused in discharge of any legally enforceable debt or liability.
4. Learned counsel for the appellant-complainant has reiterated
the allegations set-forth in the complaint, asserting that the accused had
borrowed Rs.9,15,000/-, in discharge of his legal liability, issued the
cheque in question. It was argued that the trial Court failed to appreciate
the presumption under Section 139 of the NI Act, which arises when the
accused admits to having signed the cheque. Learned counsel emphasized
that the accused neither rebutted this presumption with cogent evidence nor
explained how the cheque came into the possession of the complainant.
5. It was further contended by the learned counsel that the
accused did not take any steps to demand the return of the cheque, which
substantiates the claim of the complainant that it was issued for repayment
of a debt.
6. Per contra, learned counsel for the respondent vehemently
opposed the submissions of the complainant. It was argued that the learned
trial Court rightly acquitted the accused, as the complainant failed to prove
his case. Counsel for the respondent submitted that the complainant had
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neither provided any documentary evidence to establish the source of the
alleged loan nor substantiated the claim with corroborative evidence, such
as eyewitness testimony or proof of advancement of the loan.
7. I have heard learned counsel for the parties and have perused the
relevant material placed on record.
8. Admittedly, the complainant failed to produce any
documentary evidence or proof to substantiate the existence of a legally
enforceable debt or liability for which the cheque was allegedly issued.
9. The complainant merely stated that the cheque was issued in
discharge of an existing legal liability without providing specifics
regarding the nature, origin or timing of the liability. There was no
evidence of when the alleged loan was demanded, when it was advanced,
or for what purpose it was given.
10. No eyewitness was examined by the complainant to
corroborate the alleged loan transaction. The complainant also failed to
explain the manner in which the loan was advanced.
11. While Section 139 of NI Act raises a presumption that a
dishonoured cheque was issued in discharge of a debt or liability, this
presumption is limited to the existence of the cheque itself. The
complainant still bears the burden of proving that the debt or liability was
legally enforceable.
12. In the present case, the complainant did not provide sufficient
evidence to establish that the cheque was issued for a valid consideration to
discharge a legally enforceable debt.
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13. The trial Court rightly observed that merely presenting a
cheque does not, in itself constitute an offence under Section 138 of the NI
Act. The complainant must also prove that the cheque was issued in
discharge of a legally enforceable debt or liability. The absence of any
documentary evidence, corroborative testimony, all details about the
alleged transaction significantly undermined the case of the complainant.
14. In view of the foregoing, this Court concurs with the findings
of the learned trial Court that the complainant has failed to prove that the
cheque in question was issued in discharge of a legally enforceable debt or
liability. Accordingly the impugned judgment does not warrant any
interference and the instant appeal is hereby dismissed.
(MANJARI NEHRU KAUL)
January 24, 2025 JUDGE
poonam
Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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