Himachal Pradesh High Court
Date Of Decision: 12.09.2024 vs Sandeep Kumar & Another on 12 September, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:8588
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. Revision No.684 of 2023
.
Date of Decision: 12.09.2024
_______________________________________________________
Karamjit Singh …….Petitioner
Versus
Sandeep Kumar & another … Respondents
_______________________________________________________
Coram:
Hon’ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. B.R.Kashyap, Advocate.
For the Respondents : Mr. Arun Kaushal, Advocate for
r respondent No.1.
Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C.Verma, Additional
Advocate Generals with Mr. Ravi
Chauhan, Deputy Advocate, for
respondent No.2/State.
_______________________________________________________
Sandeep Sharma, Judge(oral):
Instant Criminal Revision petition filed under Section
397(1) read with Section 401 of the Code of Criminal Procedure, lays
challenge to judgment dated 31.10.2023 passed by learned Additional
Sessions Judge-II, Una, District Una, Himachal Pradesh in Criminal
Appeal No.50 of 2022, affirming the judgment of conviction and order
of sentence dated 13.05.2022 passed by learned Additional Chief
Judicial Magistrate, Court No.1, Una, District Una, Himachal Pradesh,
in complaint case No.173/2 of 2019, titled Sandeep Kumar versus
1
Whether the reporters of the local papers may be allowed to see the judgment?
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Karamjeet Singh, whereby learned trial Court, while holding
petitioner-accused ( for short ‘accused’) guilty of having committed
.
an offence punishable under Section 138 of the Negotiable
Instruments Act(for short ‘Act’), convicted and sentenced him to
undergo simple imprisonment for a period of
one year and pay
compensation to the tune of Rs.4,35,000/- to the respondent-
complainant.
2. Precisely, the facts of the case, as emerge from the
record are that respondent No.1-complainant (for short
‘complainant’) filed a complaint under Section 138 of the Act in the
Court of learned Additional Chief Judicial Magistrate, Court No.1,
Una, District Una, Himachal Pradesh, alleging therein that he deals in
the business of sale purchase of second hand cars under the name
and style of M/s Star Car Bazaar, situate at Village Bathu, Tehsil
Haroli, District Una, Himachal Pradesh and on 25.01.2019, accused
purchased a second hand Tata Safari Model, 2011 black coloured car
from him for sum of Rs. 3, 40,000/-. Complainant alleged that on the
date of purchase, accused made payment of Rs.20,000/- as advance
money and with a view to discharge his remaining liability, issued two
cheques bearing No.014454, dated 07.05.2019 and 014455, dated
08.05.2019, amounting to Rs.1,60,000/- each payable at Punjab
National Bank, Branch Tahliwal in favour of the complainant, however
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same were dishonoured on account of insufficient funds in the bank
account of the accused. Since, despite having received legal notice,
.
accused failed to make the payment good well within stipulated time,
complainant had no option, but to initiate proceedings under Section
138 of the Act in the competent Court of law, which subsequently, on
the basis of pleadings as well as evidence adduced on record by the
respective parties, held the accused guilty of having committed
offence punishable under S. 138 of the Act and accordingly convicted
and sentenced him as per description given herein above.
3. Though, at first instance, being aggrieved and
dissatisfied with the aforesaid judgment of conviction and order of
sentence recorded by learned trial Court, present petitioner-accused
preferred an appeal in the Court of learned Additional Sessions
Judge-II, Una District Una, Himachal Pradesh, but same also came
to be dismissed vide judgment dated 31.10.2023. In the aforesaid
background, petitioner-accused has approached this Court in the
instant proceedings, praying therein for his acquittal after quashing
and setting aside the impugned judgment of conviction and order of
sentence recorded by Courts below.
4. Vide order dated 26.12.2023, this Court suspended the
substantive sentence imposed by Court below, subject to petitioner-
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accused depositing 30% of the compensation amount and furnishing
personal bonds in the sum of Rs. 30,000/- with one surety in the like
.
amount to the satisfaction of learned trial Court within a period of six
weeks. However, fact remains that aforesaid order never came to be
complied with despite repeated opportunities.
5. Having heard learned counsel representing the parties
and perused material available on record vis-à-vis reasoning assigned
in the impugned judgments of conviction and order of sentence
recorded by Courts below, this Court is not persuaded to agree with
the submission of learned counsel for the petitioner-accused, that
both the Courts below have failed to appreciate the evidence in its
right perspective, rather this Court finds that both the Courts below
have very meticulously dealt with each and every aspect of the matter
and there is no scope left for interference.
6. Interestingly, in the case at hand, at no point of time
factum regard to purchase of car by the accused from the
complainant as well as his having issued cheques and signatures
thereupon came to be disputed. Accused in his statement recorded
under Section 313 Cr.P.C, fairly admitted factum with regard to his
having purchased car from the complainant for sum of Rs.3, 40,000/-.
While admitting that sum of Rs.20,000/- was paid in advance,
petitioner-accused specifically stated in his statement recorded under
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Section 313 Cr.P.C that though he had issued cheques in question,
but not towards discharge of lawful liability, but as a security.
.
However, aforesaid defence put forth by accused never came to be
probablized for the reason that neither he could point out anything
from the pleadings as well as evidence adduced on record by the
complainant nor he led any evidence to prove that cheques in
question were not issued towards discharge of lawful liability, if it is
so, no illegality can be said to have been committed by the Courts
below, while invoking Sections 118 and 139 of the Act, which speak
about presumption in favour of the holder of the cheque that cheque
was issued towards discharge of lawful liability. No doubt, aforesaid
presumption is rebuttable, but to rebut such presumption, accused
either can refer to the documents and evidence led on record by the
complainant or presumption can be rebutted by leading positive
evidence, if any.
7. Interestingly, during the pendency of the appeal before
the learned Additional Sessions Judge, an application under Section
311 Cr.P.C came to be filed on behalf of the petitioner-accused for
adducing on record additional documents. Learned Appellate Court
rejected the said application on the ground that application, if any,
ought to have filed under Section 391 Cr.P.C. However, learned
Appellate Court after having perused the receipt placed on record,
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rejected the same for the reason that signatures appended thereupon
by the complainant do not match and same appear to have been
.
appended with different inks. Apart from above, learned Additional
Sessions judge, also observed that appropriate application under
Section 391 Cr.P.C could have been filed by the petitioner before the
trial Court, seeking therein permission to place on record receipt, if
any, issued by the complainant qua the receipt of payment. It is not
in dispute that aforesaid order, thereby rejecting the application filed
under Section 311 Cr.P.C, never came to be laid challenge in the
appropriate Court of law and as such, same has attained finality. .
8. 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 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 No.23 to 25 of
the judgment herein:-
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“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 the legislative 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
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 should guide 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 presumption under 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 not need 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 or liability, obviously statutory presumption
under Section 139 of the NI Act regarding
commission of the offence comes into play if the
same is not 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 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
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even in such cases, the question whether or not
there was lawfully recoverable debt or liability for
discharge whereof the 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 this the 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 a sufficient
ground to proceed in the matter, would be
extremely heavy.
9. Precisely, the case of the petitioner/accused as came to
be repeatedly argued is that cheques in question were not issued
towards discharge of lawful liability, rather same were issued as a
security, but same were misused. However, aforesaid defence
attempted to be put forth never came to be probablized because
despite sufficient opportunities, petitioner- accused failed to lead
evidence.
10. By now it is well settled that dishonour of cheque issued
as “security” can also attract offence under Section 138 of the
Negotiable 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
something given 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
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2024:HHC:8588repay 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 or agreement between the parties to defer
the payment of amount,.
the cheque which is issued as security would mature for
presentation and the drawee of the cheque would be entitled to
present the same. On such presentation, if the same is
dishonoured, the consequences contemplated under Section
138 and the other provisions of N.I. Act would flow.
11. 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 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.
12. Having scanned the entire evidence adduced on record
by the respective parties, this Court finds that all the basic ingredients
of Section 138 of the Act are met in the case at hand. Similarly,
factum with regard to signatures and issuance of cheques by the
accused towards discharge of lawful liability stands duly established
on record.
13. Moreover, this Court has a very limited jurisdiction under
Section 397 of the Cr.P.C, to re-appreciate the evidence, especially,
in view of the concurrent findings of fact and law recorded by the
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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:-
“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. But thesaid 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 when theevidence has already been appreciated by the Magistrate as
well as Sessions Judge in appeal, unless any glaring featureis brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of justice.”
14. Since after having carefully examined the evidence in the
present case, this Court is unable to find any error of law as well as
fact, if any, committed by the courts below, while passing impugned
judgments, there is no occasion, whatsoever, to exercise the
revisional power.
15. 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
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judicial process or illegality of sentence or order, but learned counsel
representing the accused has failed to point out any material
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irregularity committed by the courts below while appreciating the
evidence and as such, this Court sees no reason to interfere with the
well reasoned judgments passed by the courts below.
16. 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 valid 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.
17. Accordingly, the present criminal revision petition is
dismissed being devoid of any merit. The petitioner is directed to
surrender himself before the learned trial Court forthwith to serve the
sentence as awarded by the learned trial Court, if not already served.
Bail bonds of the petitioner are cancelled and discharged accordingly.
Interim direction, if any, stands vacated. Pending applications, if any,
also stand disposed of.
(Sandeep Sharma),
Judge
September 12, 2024
(shankar)
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