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TMI Blog2017 (10) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... inant has also maintained a suit for the recovery of this amount, which was dismissed in default and so, the complaint requires dismissal. This Court finds that no substance in the arguments of learned Senior Counsel for the accused that the complainant should enforce has a right by way of civil litigation, the complainant has proved its case beyond the shadow of reasonable doubt. This Court finds that no force in the arguments of learned Senior Counsel for the accused. The petition maintained by the petitioner is without any merit, as the complainant has proved its case beyond the shadow of reasonable doubt. The cheque was issued for consideration, so the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court, needs no interference. The present revision petition, which sans merits, deserves dismissal and is accordingly dismissed. - Cr. Revision No. 4060 of 2013 - - - Dated:- 22-9-2017 - Chander Bhusan Barowalia, J. For the Petitioner : Mr. R.K. Bawa, Sr. Advocate with Mr. Ajay Kumar Sharma, Advocate For the Respondent : Mr. Pushpinder Jaswal, Deputy Advocate General with Mr. Rajat Chauhan, Law Officer Mr. Ashwani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s argued that the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court is without appreciating the facts, which have come on record to its true perspective. He has argued that the learned Trial Court has failed to take into consideration the fact that the cheque was issued as a security and there was no consideration for issuance of cheque ignoring all these aspects, so the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court is required to be set aside. He has further argued that even the holder of FDRs, Ram Kumar, has stated before the learned Magistrate that FDRs do not belong to him. He has argued that it is for the Bank to return the FDRs to the complainant and so, the accused cannot be held guilty. 4. On the other hand, Mr. Ashwani Pathak, learned Senior Counsel appearing on behalf of the complainant has vehemently argued that under Section 138 of the Negotiable Instruments Act, there is a presumption in favour of the holder of the cheque. The cheque was issued for consideration, as the accused has taken away money from the Bank account of the complainant and prepare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his part. The said cheque was presented by him in the Bank and the same was dishonoured. The cheque was received with return memo Ex.CW1/C, thereafter notice Ex.CW1/D, was issued, vide postal receipt Ex.CW1/E and acknowledgement Ex.CW1/F and postal certificate Ex.CW1/G. Despite receipt of notice, the accused failed to make payment within the statutory period. In his crossexamination, he denied that a sum of ₹ 22,96,000/- is still in his name and deposed that the said amount is lying deposited in the name of Ram Kumar, which is in the shape of FDR. CW-2 Govind Ram, Manager in H.P. State Cooperative Bank Ltd; Taklech, proved on record account statement of the accused, Ex.CW2/A and copy of register of cheques etc. returned unpaid Ex.CW2/B. He has deposed that the cheque was not cleared since the accused was not having sufficient funds in his account. He has denied that the cheque was not issued against the account of the accused. CW-3 Balbir Chauhan, proved on record the statement of account of the complainant Ex.CW3/A. DW-1 Govind Ram, deposed that the account was in the name of complainant and he was having two FDRs amounting to ₹ 75 lacs and ₹ 25 lacs in the Ban ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plea that he infact had been authorized by the complainant to draw and to make transfers from his account and thus, he pleaded innocence. Perusal of the stand taken by the accused while cross-examining the witnesses produced by the complainant as well as while replying to questions put to the accused under Section 313 of the Code of Criminal Procedure and at the time of leading evidence in defence goes to show that he has admitted that he had issued cheque Ex.CW1/A in favour of the complainant, but he has tried to show that infact it was a cheque issued by way of security. The cheque Ex.CW1/A, was issued by the accused to discharge his liability towards the complainant or that it was by way of security as alleged by the accused. While appreciating this aspect of the case, it has also to be kept in mind that the accused is required to prove his plea by preponderance of probability. 8. The case of the complainant is that he was having cash credit facility in H.P. Cooperative Bank, Taklech Branch, where the accused was a Manager at that time. He had been granted this facility against two FDRs one in the sum of ₹ 75,00,000/- and another in the sum of ₹ 25,00,000/-. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfer it. However, replying to question No.7, put to him under Section 313 of the Code of Criminal Procedure, he had taken the plea that this transfer had been effected by him with permission of the complainant. Ex.D- 4, an application moved by the complainant whereby he had requested the Manager of H.P. State Cooperative Bank Ltd. Taklech Branch, to provide him financial assistance by way of loan to the tune of ₹ 85,00,000/- against FDRs of ₹ 1,00,00,000/-. There is nothing on record to show that he had authorized the accused to transfer any amount out of his loan in favour of any third person. However, he had created a lien with respect to the FDRs in favour of the bank in consideration of the sanctioning of the loan facility. DW-1 Govind Ram, had not supported the case of the accused. He had rather specifically deposed that the transfer could be effected only if a request is made by the depositor and in that eventuality necessary voucher should be signed by the depositor. In his crossexamination, he has stated that there is no record available in the Bank to show that the complainant had made any request through any application or had signed the necessary voucher in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name of Ram Kumar and interest accrued thereon could not be held to be the account of the complainant. Accused had also tried to show that the cheque in question had not been issued by him against his own account. Rather, he had tried to show that it had been issued against some other account. So even, if it is held that he had mentioned some another account number in this cheque, even then it is not possible to hold that the cheque in question did not pertain to the account maintained by the accused with H.P. State Cooperative Bank Ltd. The cheque had been presented for collection of amount within the period of its validity and had been dishonoured due to insufficient amount in the account of the accused. The accused while replying to question No.11 put to him under Section 313 of the Code of Criminal Procedure, had also admitted that the complainant had served upon him the necessary notice. Complaint had also been filed within the stipulated period. 10. Learned Senior Counsel appearing on behalf of the accused has relied upon the judgment in Sudhir Kumar Bhalla vs. Jagdish Chand and others, 2008 (7) Supreme Court Cases 137. Relevant para-22 of the judgment is reproduced here ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s under Sections 118 and 139 of the Act help him shift the burden on the accused. The presumptions will live, exists and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debit or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 13. Applying the ratio of the judgment to the facts of the present case, it is clear that the accused has failed to prove that the cheque was not issued for a consideration. It is proved on record that the accused has utilized the money of the complainant to the extent of cheque, he has issued the cheque to the complainant towards repayment and it is for the consideration. 14. After going through the facts of the present case, this Court finds that the accused has failed to rebut the initial presumption in favour of the complainant, as the cheque was issued towards the repayment of money, the accused has withdrawn from the account of the complainant. So, this Court comes to the conclusion that initially presumption in favour of the complainant that it was issued for considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the present case since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is in unworthy of credit, apart from being unsupported by any evidence. 10. Further, the High Court relied heavily on the printed date on the cheque. However, we are of the view that by itself, in the absence of any other evidence, cannot be conclusive of the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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