Punjab-Haryana High Court
Gian Chand Garg vs Harpal Singh And Anr on 27 March, 2025
Neutral Citation No:=2025:PHHC:042379
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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CRR-2563-2010 (O&M)
Reserved on: 24.03.2025
Pronounced on: 27.03.2025
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GIAN CHAND GARG
. . . . Petitioner
Vs.
HARPAL SINGH AND ANOTHER
. . . . Respondent
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Argued by: - Mr. A.S. Virk, Advocate, for the petitioner.
Mr. Keshav Pratap Singh, Advocate, with
Mr. Nitin Sansanwal, Advocate, for respondent No.1.
Mr. R.K.S. Brar, Addl. A.G., Haryana.
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DEEPAK GUPTA, J.
In criminal complaint filed by Harpal Singh (respondent herein),
accused-Gian Chand Garg (petitioner herein) was convicted by ld. JMIC,
Kurukshetra under Section 138 of the Negotiable Instruments Act, 1881 [for
short 'the NI Act'] vide judgment dated 21.04.2010 and was sentenced to
undergo simple imprisonment for a period of 6 months and to pay fine of
₹1000/- with default sentence of 15 days imprisonment vide order of the
even date. Fine was paid.
2. Against this conviction and sentence, appeal was preferred by
the accused (petitioner herein), but the same was dismissed by the ld.
Additional Sessions Judge, Kurukshetra vide order dated 14.09.2010, thus
affirming the conviction as well as sentence.
3. Against the aforesaid judgment of conviction and order of
sentence passed by the trial Court and as affirmed by the appellate Court,
the present revision has been filed by the accused.
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4. As the paper-book would reveal, the case of the complainant
i.e. respondent herein was that an amount of ₹5 lakh had been borrowed by
the accused-petitioner herein and in order to pay the same, accused had
issued cheque No.933572 dated 15.10.2003 drawn on Punjab National Bank,
Ratgal, Tehsil Thanesar, District Kurukshetra to discharge the liability.
However, on presentation, the cheque was dishonoured by Banker of the
accused on 31.12.2003 with endorsement of 'insufficient funds'.
Complainant approached the accused and requested him to make payment
of the cheque amount, but he postponed the matter and then complainant
issued a legal notice dated 19.01.2004 under Registered AD cover but the
accused did not receive the same and it was returned to the complainant.
With these allegations, complaint was filed.
5. After recording preliminary evidence, accused was summoned.
On his appearance, notice of accusation under Section 138 of the NI Act was
served upon him, to which he pleaded not guilty and claimed trial.
Complainant produced evidence in support of his case. Accused in his
statement under Section 313 CrPC alleged false implication. After hearing
both the sides, ld. Magistrate found the accused to be guilty and convicted
him under Section 138 of the NI Act and sentenced him thereunder as per
the details given earlier and the same has been affirmed by the appellate
Court.
6.1 Assailing the aforesaid findings, ld. counsel contends that legal
notice prior to filing of the complaint was not served upon the accused-
petitioner, inasmuch as it was reported by the postal employee that
addressee was on leave and so, the notice was returned unclaimed. It is
contended that since the legal notice was not served upon the accused,
therefore, the complaint was premature.
6.2 Another contention made by ld. counsel is that the return
memo issued by the bank does not bear the stamp of the bank and as such,
it cannot be relied.
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6.3 It is also the contention that loan as allegedly advanced by the
complainant, was neither entered by the complainant in his account books
nor was shown in his Income Tax Returns and so, the case pleaded by the
complainant was not reliable.
6.4 With these submissions, ld. counsel prays for setting aside the
conviction as well as order of sentence.
7.1 Refuting the aforesaid contentions, ld. counsel for the
respondent contends that the entire evidence as examined by the trial Court
was re-appreciated by the Appellate Court and no illegality or perversity was
found in the findings. It is contended that even if the legal notice sent to the
accused prior to filing of the complaint could not be served upon him as he
was on leave, the filing of the complaint itself amounts to serving of the
notice and that accused could have made the payment within 15 days after
being served of the complainant. Ld. counsel has relied upon C.C. Alavi Haji
Vs. Palapetty Muhammed and another, 2007(3) RCR (Criminal) 185.
7.2 It is further the contention of ld. counsel that the bankers
return memo bears the date as well as signature of the issuing official of the
concerned bank and that there is a presumption under Section 146 of the NI
Act to the said memo and as such, the contention that the memo does not
bear the stamp of the Bank is without any merit.
7.3 Ld. counsel contends further that it was not a civil suit for
recovery and so, it was not the legal requirement to produce the account
books or Income Tax Returns. Once the signature of the accused on the
cheque in question was not denied, there was a legal presumption under
Section 139 of the NI Act and in the absence of any cogent evidence to rebut
the same, the Courts below have rightly convicted the petitioner-accused.
7.4 Apart from above, ld. counsel for the respondent has further
drawn attention towards the conduct of the petitioner-accused, inasmuch
as said petitioner on 21.02.2025 produced two demand drafts for total
amount of ₹5 lakh i.e. cheque amount for making payment to the
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respondent-complainant and further stated that he shall pay another
amount of ₹2 lakh to the complainant for compounding of the offence.
Matter was adjourned to 28.02.2025. On the adjourned date, it was pointed
out by counsel for the respondent-complainant that cheque of ₹5 lakh
pertains to the year 2003 and even if interest is taken at 6% per annum, the
total amount would be in excess of ₹11 lakh and that in case petitioner
wished to settle the dispute, he ought to pay the said amount. Matter was
adjourned. On 11.03.2025, counsel for the respondent-complainant
modified the offer by stating that the complainant-respondent will be
satisfied in case the petitioner-accused made total payment of ₹8 lakh
including the amount of the cheque in question. Adjournment was taken by
counsel for the petitioner to obtain necessary instructions, but on the next
date of hearing, counsel for the petitioner, on instructions from the
petitioner, stated that petitioner was not ready to pay the amount of ₹8
lakh. It is contended by ld. counsel for the respondent that this conduct of
the petitioner in itself shows that he had admitted his liability and wanted to
compound the offence and these circumstances itself show the falsity of the
contentions being raised before this Court.
7.5 Prayer is accordingly made for dismissal of the petition.
8. This Court has considered submissions of both the sides and
have appraised the record.
9. First of all, it may be noticed that revisional Court is not
required to re-appreciate the evidence so as to interfere in the concurrent
findings of facts recorded by the trial Court and the Sessions Judge. It has
been held in State Of Maharashtra vs Jagmohan Singh Kuldip Singh Anand
& Ors : AIR 2004 SC 4412 as under:
"The Revisional Court is empowered to exercise all the powers conferred
on the Appellate Court by virtue of the provisions contained in Section 410
CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all
powers of Appellate Court, if necessary, in aid of power of superintendence
or supervision as a part of power of revision conferred on the High Court or
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the Sessions Court. Section 397 CrPC confers power on the High Court or
Sessions Court, as the case may be, "for the purpose of satisfying itself or
himself as to the correctness, legality or propriety of any finding, sentence
or order, recorded or passed and as to the regularity of any proceeding of
such inferior court." It is for the above purpose, if necessary, the High Court
or Sessions Court can exercise all appellate powers. Section 401 CrPC
conferring powers of Appellate Court on the Revisional Court is with the
above limited purpose. The provisions contained in Section 395 to Section
401 CrPC, read together, do not indicate that the revisional power of the
High Court can be exercised as a second appellate power."
10. Still further, in Raj Kumar vs State Of H.P : AIRONLINE 2008 SC
340, Hon'ble Supreme Court held:
"8. In State of Orissa v. Nakula Sahu and Ors. (AIR 1979 SC 663) it was held
that the High Court should not have interfered with the concurrent findings
recorded by the Trial Court and the Sessions Judge in exercise of revisional
jurisdiction when there was no error of fact or law arrived at by the Trial
Court or the Sessions Judge. In State of Kerala v. Puttamana Illath
Jathavedan Namboodiri (1999 (2) SCC 452) it was held that the revisional
jurisdiction is one of supervisory jurisdiction exercised by the High Court for
correcting miscarriage of justice. But the said revisional power cannot be
equated with the power of an appellate Court nor can it be treated even as
a second appellate jurisdiction. Ordinarily, therefore, it would not be
appropriate for the High Court to re-appreciate the evidence and come to
its own conclusion on the same unless any glaring feature is brought to the
notice of the High Court which would otherwise tantamount to gross
miscarriage of justice."
11. In the light of the aforesaid legal position, when the impugned
judgments are perused, this Court does not find any illegality or impropriety
so as to interfere in the concurrent finding of fact, based on proper
appreciation of evidence, resulting in conviction.
12. Still further, even if matter is considered on merits, it is noticed
that petitioner does not dispute his signature on the cheque in question.
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Once signature on the cheque are not in dispute, there is a presumption of
legal liability under Section 139 of the Negotiable Instruments Act to be read
with Section 118 of the Act, in favour of the complainant, though the said
presumption is rebuttable.
13. Section 139 and Section 118 clause (a) & (b) of the Negotiable
of Instruments Act read as under:-
"139. Presumption in favour of holder. - It shall be presumed, unless the
contrary is proved, that the holder of a cheque received the cheque, of the
nature referred to in section 138, for the discharge, in whole or in part, of
any debt or other liability."
118. Presumptions as to negotiable instruments. - Until the contrary is
proved, the following presumptions shall be made:-
(a) of consideration. - that every negotiable instrument was made or
drawn for consideration, and that every such instrument, when it has been
accepted, endorsed, negotiated or transferred, was accepted, endorsed,
negotiated or transferred for consideration;
(b) as to date. - that every negotiable instrument bearing a date was made
or drawn on such date;"
14. In Rangappa vs. Sri Mohan, 2010 (3) Criminal Court Cases 022
(S.C.), a three judge bench of the Hon'ble Supreme Court held that Section
139 of the NI Act includes the presumption regarding the existence of a
legally enforceable debt or liability and that the holder of a cheque is also
presumed to have received the same in discharge of such debt or liability. It
was clarified in the aforesaid decision that the presumption of the existence
of a legally enforceable debt or liability is, of course, rebuttable and it is
open to the accused to raise a defence, wherein the existence of a legally
enforceable debt or liability can be contested. Without doubt, the initial
presumption is in favour of the complainant. Hon'ble Supreme Court further
held in above case that Section 139 of the NI Act is stated to be an example
of a reverse onus clause, which is in tune with the legislative intent of
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improving the credibility of negotiable instruments. Section 138 of the NI
Act provides for speedy remedy in a criminal forum, in relation to dishonour
of cheques. Nonetheless, the Hon'ble Supreme Court cautions that the
offence under Section 138 of the NI Act is at best a regulatory offence and
legally falls in the arena of a civil wrong and therefore, the test of
proportionality ought to guide the interpretation of the reverse onus clause.
An accused may not be expected to discharge an unduly high standard of
proof, reverse onus clause requires the accused to raise probable defence
for creating doubt about the existence of a legally enforceable debt or
liability for thwarting the prosecution. The standard of proof for doing so
would necessarily be on the basis of "preponderance of probabilities" and
not "beyond shadow of any doubt."
15. It is in the light of the aforesaid legal position that it is required
to be seen that whether accused has been able to probabilise his defence.
Here itself, it may be noted that the accused is not required to prove his
defence on the standard of proof 'beyond reasonable doubt' and rather, he
is simply required to probabilise his defence. The presumption under
Section 139 of the Act can be rebutted even by evidence led by the
complainant; and it is not required for the defence to lead evidence to rebut
presumption, as has been held by the Hon'ble Supreme Court in Shiv Kumar
Vs. Ram Avtar Aggarwal, 2020 (2) RCR (Crl.) 147.
16. In order to rebut the presumption available to complainant
under Section 139 of the NI Act, accused can either appear in the witness
box though it is not mandatory; or he can elicit circumstances favourable to
him during the cross-examination of complainant; or put forth his defence in
his statement under Section 313 Cr.P.C. supported by evidence. Here itself, it
may be noted that statement of accused under Section 313 Cr.P.C is not a
substantive piece of evidence. If accused put forth his defence in said
statement, he must support it with evidence. Reliance can be placed on
Sumeti Vij Vs. M/s Paramount Tech Fab Industries, 2021(2) CCC 348 (SC).
17. In present case, in order to rebut the presumption, petitioner
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contended that complainant did not show the amount allegedly lent to the
accused in his income tax returns or account books.
18. There is no merit in the contention, as it is not a civil case,
where plaintiff is required to prove the debt. In Uttam Ram Vs. Devinder
Singh Hudan 2019(4) CCC 596 (SC), it has been held by Hon'ble Supreme
Court that in case of dishonour of cheque, debt is not to be proved as in a
civil suit. In the case before Hon'ble Supreme Court, defence was taken by
the accused that cheque book was lost and that cheque was not issued in
discharge of any debt or liability. Accused had not appeared as a witness.
The complaint was dismissed. Hon'ble Supreme Court set aside the order of
dismissal of complaint and acquittal of accused by holding the same to be
illegal and unsustainable. Hon'ble Supreme Court held as under :-
"20. The Trial Court and the High Court proceeded as if, the appellant is to
prove a debt before civil court wherein, the plaintiff is required to prove his
claim on the basis of evidence to be laid in support of his claim for the
recovery of the amount due. A dishonour of cheque carries a statutory
presumption of consideration. The holder of cheque in due course is
required to prove that the cheque was issued by the accused and that when
the same presented, it was not honoured. Since there is a statutory
presumption of consideration, the burden is on the accused to rebut the
presumption that the cheque was issued not for any debt or other liability.
21. There is the mandate of presumption of consideration in terms of the
provisions of the Act. The onus shifts to the accused on proof of issuance of
cheque to rebut the presumption that the cheque was issued not for
discharge of any debt or liability in terms of Section 138 of the Act."
19. Similarly, in Rohitbhai Jivanlal Patel v. State of Gujarat &
another (2019) 18 SCC 106, it was held by the Hon'ble Supreme Court that :
"In the case at hand, even after purportedly drawing the presumption
under Section 139 of the NI Act, the Trial Court proceeded to question the
want of evidence on the part of the complainant as regards the source of
funds for advancing the loan to the accused and want of examination of the
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relevant witnesses who allegedly extended him money for advancing it to
the accused. This approach of the Trial Court had been at variance with the
principles of presumption in law. After such presumption, the onus shifted
to the accused and unless the accused had discharged the onus by bringing
on record such facts and circumstances as to show the preponderance of
probabilities tilting in his favour, any doubt on the complainant's case could
not have been raised for want of evidence regarding the source of funds for
advancing loan to the accused-appellant. The aspect relevant for
consideration had been as to whether the accused-appellant has brought
on record such facts/material/circumstances which could be of a reasonably
probable defence."
20. It is clear from the legal position as above that complainant is
not obliged to prove the loan or the financial capacity. Once the
presumption under Section 139 of the NI Act is available to the complainant,
entire burden shifts upon the accused to rebut that presumption, which in
the present case accused - petitioner has utterly failed.
21. Proceeding further, not showing the amount in his income tax
returns as lent by the complainant to the accused in itself cannot be a
ground to disbelieve the complainant, as non-mentioning of the loan
amount in the Income Tax Returns may attract penal provisions of Income
Tax Act but cannot be a reason to discard the case of the complainant. In this
regard, reliance may be placed on Ganga Prashad vs. Lalit Kumar, 2008(3)
RCR (Criminal) 159, wherein it was held by this High Court that the payment
of loan could not be disbelieved on the ground that complainant did not
reflect the amount in his income tax return.
22. In C.N.Dinesha Vs. Smt. C.G.Mallika, 2017 Cr.R 530, it was held
by Karnataka High Court that the Culpability of offence under section138 of
Negotiable Instrument Act will not freeze for the reason of violation of
section 269 of IT Act and nothing prevents operation of statutory
presumption. Further, in a decision rendered in Writ Petition No.29144/2018
titled Dr. M. Krishna Shetty Vs. Sri. H.R.Nagabhushan, on 29th day of August
2018, Karnataka High Court has held that the prosecution under Section 138
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of N.I.Act cannot be stalled for non-compliance of Section 269 SS of the
Income Tax Act. Any cash transaction in violation of section 269 SS of Income
Tax Act may give rise to an independent criminal offence, but on account of
violation of the said provision, the prosecution of the petitioner for the
alleged dishonour of cheque under Section 138 of Act does not become bad
in law.
23. As far as the contention of counsel for the petitioner to the
effect that legal notice was not served upon the accused is concerned, it has
no merit. Even if it be assumed that petitioner was not served with the said
notice despite the fact that it was sent at his correct address through
registered AD cover, the due service has to be presumed as has been held
by Hon'ble Supreme Court in the case of C.C. Alavi Haji (Supra). In that case,
it was held by Hon'ble Supreme Court as under: -
14. Section 27 gives rise to a presumption that service of notice has been
effected when it is sent to the correct address by registered post. In view of
the said presumption, when stating that a notice has been sent by
registered post to the address of the drawer, it is unnecessary to further
aver in the complaint that in spite of the return of the notice unserved, it is
deemed to have been served or that the addressee is deemed to have
knowledge of the notice. Unless and until the contrary is proved by the
addressee, service of notice is deemed to have been effected at the time at
which the letter would have been delivered in the ordinary course of
business. This Court has already held that when a notice is sent by
registered post and is returned with a postal endorsement "refused" or
"not available in the house" or "house locked" or "shop closed" or
"addressee not in station", due service has to be presumed. [Vide Jagdish
Singh Vs. Natthu Singh, AIR 1992 Supreme Court 1604; State of M.P. Vs.
Hiralal & Ors. (1996) 7 SCC 523 and V. Raja Kumari Vs. P.Subbarama Naidu
& Anr. 2004(4) RCR (Criminal) 933; 2005(1) Apex Criminal 58: (2004)8 SCC
774]. It is, therefore, manifest that in view of the presumption available
under Section 27 of the Act, it is not necessary to aver in the complaint
under Section 138 of the Act that service of notice was evaded by the
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accused or that the accused had a role to play in the return of the notice
unserved.
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16. As noticed above, the entire purpose of requiring a notice is to give an
opportunity to the drawer to pay the cheque amount within 15 days of
service of notice and thereby free himself from the penal consequences of
Section 138. In Vinod Shivappa (supra), this Court observed:
'One can also conceive of cases where a well intentioned drawer
may have inadvertently missed to make necessary arrangements for
reasons beyond his control, even though he genuinely intended to
honour the cheque drawn by him. The law treats such lapses
induced by inadvertence or negligence to be pardonable, provided
the drawer after notice makes amends and pays the amount within
the prescribed period. It is for this reason that Clause (c) of proviso
to Section 138 provides that the section shall not apply unless the
drawer of the cheque fails to make the payment within 15 days of
the receipt of the said notice. To repeat, the proviso is meant to
protect honest drawers whose cheques may have been dishonoured
for the fault of others, or who may have genuinely wanted to fulfil
their promise but on account of inadvertence or negligence failed to
make necessary arrangements for the payment of the cheque. The
proviso is not meant to protect unscrupulous drawers who never
intended to honour the cheques issued by them, it being a part of
their modus operandi to cheat unsuspecting persons.'
24. In view of the legal position as explained by Hon'ble Supreme
Court, it is clear that once it has not been disputed by the petitioner-accused
in this case that the address mentioned on the legal notice, on which it was
sent, was not incorrect and the notice was returned as unclaimed for the
reason that addressee was not found, due service is to be assumed. Even
otherwise, in case the petitioner genuinely intended to honour the cheque
drawn by him, and he could not do so due to non-receipt of the legal notice,
as is contended, he could have made payment of the cheque amount within
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the prescribed period after receiving notice of the complaint. As has been
explained by Hon'ble Supreme Court, the Clause (c) of the proviso to Section
138 of the NI Act is meant for honest buyers, whose cheques may have been
dishonoured for the fault of others or who may have genuinely wanted to
fulfil their promise, but failed to make necessary arrangements for payment
of the cheque.
25. The proviso is not meant to protect unscrupulous drawers, who
never intended to honour the cheque issued by them it being a part of their
modus operandi to cheat unsuspected persons. Same appear to be the
position in this case because after recording the conviction by the trial Court
and affirming of the same by the Sessions Court, when petitioner realized
that in case of dismissal of the petition, he will have to carry out the
sentence, he offered to compound the offence with the respondent-
complainant and offered to pay an amount of ₹7 lakh, but when the
complainant-respondent did not agree to this proposal by pointing out that
even if the interest @ 6% per annum is taken right from the year of issuance
of the cheque in 2003, the amount will exceed ₹11 lakh, the petitioner
refused to pay the amount. So much so the offer of the complainant-
respondent to settle the amount for ₹8 lakh was also not accepted by the
petitioner. This in itself shows the unscrupulous nature of the petitioner,
who does not want to honour the commitment for paying the cheque
amount and the interest thereon as has accrued till this date.
26. The last contention of ld. counsel that return memo issued by
the bank does not bear its stamp and so, it could not have been taken into
consideration, has also no force. Section 146 of the NI Act pleads as under: -
"146. Bank's slip prima facie evidence of certain facts:-
The Court shall, in respect of every proceeding under this Chapter, on
production of bank's slip or memo having thereon the official mark
denoting that the cheque has been dishonoured, presume the fact of
dishonour of such cheque, unless and until such fact is disproved."
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27. Perusal of aforesaid statutory provision would reveal that there
has to be a memo, on which there has to be an official mark. Term "official
mark" has not been defined under the Negotiable Instrument Act. This
provision was inserted by the Act 55 of 2002 w.e.f. 06.02.2003 with the
purpose to relieve the bank official from the burden of giving statement, as
witnesses to prove such bank slip or memo. Considering the flood of cases
filed under Section 138 of the Negotiable Instrument Act, the legislature
inserted this statutory presumption for the benefit of holder of a cheque in
the event of dishonor of cheque.
28. Further, in Guneet Bhasin vs State of NCT of Delhi, CRL.M.C.
4100/2022 & CRL.M.A. 16919/2022, decided on 14th November, 2022, it has
been observed by Delhi High Court as under:
9. The cheque return memo is a memo informing the payee's banker and
the payee about the dishonour of a cheque. When the cheque is
dishonoured, the drawee bank immediately issues a cheque return memo
to the payee's banker mentioning the reason for non-payment. The
purpose of the cheque return memo is to give the information of the
holder of the cheque that his cheque on presentation could not be
encashed due to the variety of reasons as mentioned in the cheque return
memo. As per the section 146 of the NI act, the cheque return memo on
presentation presumes the fact of dishonour of the cheque unless and until
such fact is disapproved. Neither section 138 nor the section 146 of the NI
Act has prescribed any particular form of cheque return memo. The section
138 of the NI Act does not mandate any particular form of cheque return
memo, which is nothing but a mere information given by the Banker of the
due holder of a cheque that the cheque has been returned as unpaid. If the
cheque return memo is not bearing any official stamp of the bank, it does
not render the cheque return memo as invalid or illegal. The cheque return
memo is not a document which is not required to be covered under section
4 of the Bankers Book (Evidence) Act, 1891. If there is any infirmity in the
cheque return memo, it does not render entire trial under section 138 of
the NI Act as nullity."
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29. It is, thus, clear that on production of the bank slip or memo
having thereon the official mark noting that the cheque has been
dishonoured, the Court is to presume the fact of dishonour of such cheque,
unless and until such fact is disproved. The mention of the word 'official
mark' does not mean that there should be stamp of the bank concerned.
30. In the present case, the return memo reveals that signature of
the issuing official of the bank as well as name of the branch of the bank are
duly mentioned on the said return memo. It is very clear on perusal of the
return memo that it has been issued by Punjab National Bank, the banker of
the petitioner-accused. Petitioner has not claimed that the said return
memo was not issued by his banker. As such, the contention is devoid of any
merit.
31. No other point was urged.
32. Consequent to the aforesaid discussion, it is held that there is
absolutely no illegality or perversity in the judgments as passed by the trial
Court and affirmed by the First Appellate Court. Consequently, the present
petition is hereby dismissed. The copy of the said judgment be sent to the
ld. trial Court concerned for issuing necessary warrants to take the
petitioner in custody so as to carry out the sentence as imposed by the trial
Court concerned and as affirmed by the Appellate Court.
Dismissed.
27.03.2025 (DEEPAK GUPTA)
Vivek
JUDGE
1. Whether speaking/reasoned? Yes
2. Whether reportable? Yes
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