Himachal Pradesh High Court
Date Of Decision: 12.09.2024 vs Brikam Chand on 12 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 567 of 2022
.
Date of Decision: 12.09.2024
_________________________________________________________________________
Chune Ram
.........Petitioner
Versus
Brikam Chand
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the Petitioner: Mr. B.L.Soni, Mr. Nitin Soni & Mr. Sunil Gautam,
Advocates.
For the Respondent: Mr. Jeevesh Sharma and Ms. Tamanna Chauhan,
Advocates.
_________________________________________________________________________________
Sandeep Sharma, J. (Oral)
Instant criminal revision petition filed under Section 397 read
with Section 401 Cr.P.C, lays challenge to judgment dated 09.09.2022
passed by the learned Sessions Judge, Kullu, District Kullu, H.P., in
Criminal Appeal No. 20 of 2022, affirming the judgment of conviction and
order of sentence dated 04.04.2022, passed by the learned Judicial
Magistrate First Class, Banjar, District Kullu, H.P. in criminal complaint
No. 870/19/2014, whereby the learned Court below, while holding the
petitioner-accused (hereinafter “accused”) guilty of having committed
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offence punishable under Section 138 of the Negotiable Instruments Act (in
.
short the “Act”), convicted and sentenced him to undergo simple
imprisonment for a period of two months and pay compensation to the tune
of Rs. 70,000/- to the respondent-complainant (hereinafter “complainant”).
2. Precisely, the facts of the case, as emerge from the record are
that complainant instituted a complaint under Section 138 of the Act
before the competent Court of law, alleging therein that with a view to
discharge his lawful liability, accused had issued cheque bearing No.
488002 Ext. CW1/B dated 28.08.2014 amounting to Rs. 50,000/- drawn
on SBI, Branch Sainj, HP, in favour of complainant, but aforesaid cheque
on its presentation was dishonoured on account of “insufficient funds” vide
return memo dated 03.05.2010 Ext. CW1/C. Since accused failed to make
the payment good within the stipulated period despite his having received
legal notice dated 11.11.2014 Ext.CW1/D, complainant had no option, but
to initiate proceedings under Section 138 of the Act in the competent Court
of law.
3. Learned trial Court on the basis of material adduced on record
by the respective parties, vide judgment dated 04.04.2022, held the
accused guilty of his having committed offence punishable under Section
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138 of the Act and accordingly, convicted and sentenced him as per the
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description given herein above.
4. Being aggrieved and dissatisfied with the aforesaid judgment of
conviction recorded by the learned Court below, accused preferred an
appeal before the learned Sessions Judge, Kullu, District Kullu, H.P., but
same was dismissed vide judgment dated 09.09.2022. In the aforesaid
background, petitioner has approached this Court in the instant
proceedings, praying therein to set-aside the judgment of conviction and
order of sentence recorded by the learned Court below.
5. Vide order dated 21.10.2022, this Court suspended the
substantive sentence imposed by the learned Court below subject to
petitioner’s depositing 20% of the compensation amount and furnishing
personal bond in the sum of Rs. 50,000 alongwith one surety in the like
amount within a period of six weeks. Though accused has deposited 20% of
the compensation amount in terms of afore order, but thereafter repeatedly
matter was adjourned on his request, enabling him to deposit the balance
amount, but in vain. In the aforesaid background, this Court has no
option, but to decide the petition on its own merits.
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6. Having heard learned counsel for the parties and perused
.
material available on record vis-a-vis reasoning assigned in the impugned
judgment passed by learned Sessions Judge, Kullu, District Kullu, H.P.,
whereby judgment of conviction and order of sentence recorded by the
learned trial Court came to be upheld, this Court is not persuaded to agree
with Mr. B.L. Soni, learned counsel for the petitioner, that learned Courts
below have failed to appreciate the evidence in its right perspective, rather
this Court finds that both the Courts below have dealt with each and every
aspect of the matter meticulously and there is no scope left for this Court to
interfere. Since factum with regard issuance of cheque as well as signature
thereupon never came to be refuted by the accused, both the Courts below
rightly invoked Sections 118 and 139 of the Act, which speak about
presumption in favour of holder of cheque that cheque in question was
issued towards discharge of lawful liability. No doubt, aforesaid
presumption is rebuttable, but to rebut such presumption, accused is
required to raise probable defence. However, in the instant case, despite
sufficient opportunity, accused failed to lead any evidence. In his statement
under Section 313 Cr.P.C, though accused attempted to deny the liability,
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if any, to pay the cheque amount, but he was unable to dispute factum
.
with regard to his having issued cheque as well as signature thereupon.
7. The Hon’ble Apex Court in M/s Laxmi Dyechem V. State of
Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused
is able to establish a probable defence, which creates doubt about the
existence of a legally enforceable debt or liability the prosecution can fail.
To raise probable defence, accused can rely on the materials submitted by
the complainant. Needless to say, if the accused/drawer of the cheque in
question neither raises a probable defence nor is able to contest existence
of a legally enforceable debt or liability, statutory presumption under
Section 139 of the Negotiable Instruments Act, regarding commission of the
offence comes into play. It would be profitable to reproduce relevant paras
of the judgment herein:
“23. Further, a three judge Bench of this Court in the matter of
Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a
reverse onus clause that has been included in furtherance of thelegislative objective of improving the credibility of negotiable
instruments. While Section 138 of the Act specifies the strong criminal
remedy in relation to the dishonour of the cheques, the rebuttable
presumption under Section 139 is a device to prevent undue delay in
the course of litigation. The Court however, further observed that it::: Downloaded on – 16/09/2024 20:29:53 :::CIS
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must be remembered that the offence made punishable by Section
138can be better described as a regulatory offence since the bouncing.
of a cheque is largely in the nature of a civil wrong whose money is
usually confined to the private parties involved in commercial
transactions. In such a scenario, the test of proportionality shouldguide the construction and interpretation of reverse onus clauses and
the defendant accused cannot be expected to discharge an unduly
high standard of proof”. The Court further observed that it is a settled
position that when an accused has to rebut the presumptionunder Section 139, the standard of proof for doing so is all
preponderance of probabilities.
24. Therefore, if the accused is able to establish a probable defence
which creates doubt about the existence of a legally enforceable debt
or liability, the prosecution can fail. The accused can rely on the
materials submitted by the complainant in order to raise such a
defence and it is inconceivable that in some cases the accused may notneed to adduce the evidence of his/her own. If however, the
accused/drawer of a cheque in question neither raises a probable
defence nor able to contest existence of a legally enforceable debt orliability, obviously statutory presumption under Section 139 of the NI
Act regarding commission of the offence comes into play if the same isnot rebutted with regard to the materials submitted by the
complainant.
25. It is no doubt true that the dishonour of cheques in order to
qualify for prosecution under Section 138 of the NI Act precedes a
statutory notice where the drawer is called upon by allowing him to
avail the opportunity to arrange the payment of the amount covered by
the cheque and it is only when the drawer despite the receipt of such a::: Downloaded on – 16/09/2024 20:29:53 :::CIS
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notice and despite the opportunity to make the payment within the
time stipulated under the statute does not pay the amount, that the.
said default would be considered a dishonour constituting an offence,
hence punishable. But even in such cases, the question whether or not
there was lawfully recoverable debt or liability for discharge whereofthe cheque was issued, would be a matter that the trial court will have
to examine having regard to the evidence adduced before it keeping in
view the statutory presumption that unless rebutted, the cheque is
presumed to have been issued for a valid consideration. In view of thisthe responsibility of the trial judge while issuing summons to conduct
the trial in matters where there has been instruction to stop payment
despite sufficiency of funds and whether the same would be asufficient ground to proceed in the matter, would be extremely heavy.”
8. In the case at hand, complainant, while examining himself as
CW-1, tendered evidence by way of affidavit Ext. CW1/A, reiterating therein
contents of complaint. He successfully proved on record cheque Ext.
CW1/B, bank slip Ext.CW1/C, return memo Ext. CW1/D, copy of legal
notice Ext. CW1/E and post receipt Ext. CW1/F. Cross-examination
conducted upon afore witness, if is analyzed in its entirety, nowhere
suggests that accused was able to extract anything contrary to what this
witness stated in his examination-in-chief.
9. By now it is well settled that dishonour of cheque issued as
security can also attract offence under Section 138 of the Negotiable
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Instruments Act. Hon’ble Apex Court in case titled Sripati Singh v. State
.
of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on
28.10.2021, has held as under:
“16. A cheque issued as security pursuant to a financial
transaction cannot be considered as a worthless piece of paper
under every circumstance. ‘Security’ in its true sense is the state
of being safe and the security given for a loan is somethinggiven as a pledge of payment. It is given, deposited or pledged to
make certain the fulfilment of an obligation to which the parties
to the transaction are bound. If in a transaction, a loan isadvanced and the borrower agrees to repay the amount in a
specified timeframe and issues a cheque as security to secure
such repayment; if the loan amount is not repaid in any other
form before the due date or if there is no other understanding oragreement between the parties to defer the payment of amount,
the cheque which is issued as security would mature forpresentation and the drawee of the cheque would be entitled to
present the same. On such presentation, if the same isdishonoured, the consequences contemplated under Section 138
and the other provisions of N.I. Act would flow.”
10. Needless to say, expression “Security cheque” is not a
statutorily defined expression in the Negotiable Instruments Act, rather
same is to be inferred from the pleadings as well as evidence, if any, led on
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record with regard to issuance of security cheque. The Negotiable
.
Instruments Act does not per se carve out an exception in respect of a
“security cheque” to say that a complaint in respect of such a cheque would
not be maintainable as there is a debt existing in respect whereof the
cheque in question is issued, same would attract provision of Section 138
of the Act in case of its dishonour.
11. Having scanned pleadings as well as evidence adduced on
record by the r complainant, this court finds that complainant
successfully proved all the ingredients of Section 138 of the Act.
Similarly, factum with regard to signatures and issuance of cheque by
the accused towards discharge of lawful liability stands duly established
on record.
12. Moreover, this Court has a very limited jurisdiction under
Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in
view of the concurrent findings of fact and law recorded by the Courts
below. In this regard, reliance is placed upon the judgment passed by
Hon’ble Apex Court in case “State of Kerala Vs. Puttumana Illath
Jathavedan Namboodiri” (1999) 2 Supreme Court Cases 452, wherein
it has been held as under:-
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“In its revisional jurisdiction, the High Court can call for and examine
the record of any proceedings for the purpose of satisfying itself as to.
the correctness, legality or propriety of any finding, sentence or order.
In other words, the jurisdiction is one of supervisory jurisdiction
exercised by the High Court for correcting miscarriage of justice. Butthe 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 ownconclusion on the same when the evidence has already been
appreciated by the Magistrate as well as Sessions Judge in appeal,
unless any glaring feature is brought to the notice of the High Courtwhich would otherwise tantamount to gross miscarriage of justice.”
13. True it is that the Hon’ble Apex Court in Krishnan and
another Versus Krishnaveni and another, (1997) 4 Supreme Court
Case 241; has held that in case Court notices that there is a failure of
justice or misuse of judicial mechanism or procedure, sentence or order is
not correct, it is salutary duty of the High Court to prevent the abuse of
the process or miscarriage of justice or to correct irregularities/
incorrectness committed by inferior criminal Court in its judicial process or
illegality of sentence or order, but learned counsel representing the accused
has failed to point out any material irregularity committed by the Courts
below while appreciating the evidence and as such, this Court sees no
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reason to interfere with the well reasoned judgments passed by the Courts
.
below.
14. Consequently, in view of the discussion made herein above as
well as law laid down by the Hon’ble Apex Court, this Court sees no reason
to interfere with the well reasoned judgments recorded by the Courts below,
which otherwise, appear to be based upon proper appreciation of evidence
available on record and as such, same are upheld.
15. Accordingly, the present criminal revision petition is dismissed
being devoid of any merit. The petitioner is directed to surrender before the
learned trial Court forthwith to serve the sentence as awarded by the
learned trial Court, if not already served. Interim direction, if any, stands
vacated. Pending applications, if any, also stand disposed of.
September 12, 2024 (Sandeep Sharma),
(sunil) Judge
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