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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 ..... the Negotiable Instruments Act and to pay compensation to the tune of Rs. 16,00,000/-, to the complainant. 2. The key facts, giving rise to the present petition are that the complainant/respondent (hereinafter referred to as the 'complainant') maintained the complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'Act') against the accused/petitioner (hereinafter referred to as the 'accused'). As per the complainant, on 31.5.2007, accused being Branch Manager of H.P. State Co-operative Bank Ltd. Taklech Branch, had unlawfully transferred a sum of Rs. 22,96,000/- from the account of complainant to the account of Ram Kumar, without the consent and written request of the complainant and when the complainant confronted the accused qua his illegal transfer of amount from his account, he admitted transfer of such amount and assured the complainant to repay the amount. The accused issued cheque bearing Nos.5555558 dated 1.11.2007, amounting to Rs. 12,00,000/- in favour of the complainant in discharge of his aforesaid liability against his account in the same Bank i.e. H.P. State Co-Operative Bank Ltd. Taklech Branch. The said cheque was presented a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the parties, I have gone through the record in detail. 7. The complainant was having two FDRs in the H.P. State Cooperative Bank Ltd; Taklech Branch, Tehsil Rampur, District Shimla, for an amount of Rs. 75,00,000/- and Rs. 25,00,000/-, respectively and the accused was Manager of the said Bank. The case of the complainant is that the accused has transferred unauthorisedly an amount of Rs. 22,96,000/-, from his account and deposited the same in the account of one Ram Kumar and when he came to know about this withdrawal, he approached the accused. The accused admitted his guilt and promised to pay this amount, as the accused has withdrawn this amount from the account of complainant, he had issued him two cheques including cheque Ex.CW1/A, for a sum of Rs. 12,00,000/-, when this cheque was deposited, it was dishonoured with remarks 'Exceeds Arrangements'. The statutory period to pay the amount in the notice was given to the accused, but the accused has failed to pay the amount. Complainant Trilok Singh, while appearing in the witness box as CW-1, deposed that accused was working as Manager in H.P. State Cooperative Bank, Taklech Branch, at the relevant time. He has further d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch transfer written request was required to be made by the complainant. He also admitted that amount could not have been withdrawn on telephonic call or oral request of the complainant. He further deposed that no written request was received by the Bank for such transfer. DW-2, Ram Kumar Sharma, deposed that he was a contractor and was having account in Cooperative Bank, Taklech Branch. The Fixed Deposit, which he was having was pledged with Executive Engineer, HP PWD, Kumarsain. One FDR was amounting to Rs. 22,46,000/-. He further deposed that these FDRs were given to him by his partner Ram Lal Thakur. He further deposed that on 29.11.2007, he came to know that these FDRs were prepared after transferring the amount from the account of complainant. He further deposed that he was receiving interest from the FDRs. He admitted that amount invested in these Fixed deposits was not belonging to him. The accused has specifically admitted that he has issued the cheques in favour of the complainant. In reply to the question put to the accused while recording his statement under Section 313 of the Code of Criminal Procedure, he admitted that during the year 2007, he was posted as Branch Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had unauthorisedly transferred a sum of Rs. 22,96,000/-, from his loan account and had deposited this amount in the account of one Ram Kumar and when complainant come to know about this unauthorized withdrawal from this account, he approached the accused and had confronted him with his illegal act. He had initially tried to defensive, but when complainant adopted a stern posture, he admitted his guilt and promised to pay this amount to him and in lieu thereof, he issued him two cheques including cheque Ex.CW1/A, each in the sum of Rs. 12,00,000/-, which also included the interest, which had accrued on this loan amount, which was liable to be paid to him by the Bank. CW-1 (complainant) had categorically deposed that when he came to know about the withdrawn of Rs. 22,96,000/- from his loan account, he immediately approached the accused and asked him about how he has withdrawal of this amount. Initially, the accused tried to put off the matter, but when he asked him sternly in this behalf, he admitted the withdrawal of this amount and its transference in the fixed deposit account of one Ram Kumar. He apologized for this act and handed over to him two cheques each in the sum of Rs. 12, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the accused had unauthorisedly withdrawn a sum of Rs. 22,96,000/-, from the account of the complainant without the consent express or implied of the complainant. It is correct that accused at that time was working as a Manager and by misusing his aforesaid position, he had unauthorisedly transferred the amount from the account of the complainant in the account of a third person. It is the case of the complainant that when he questioned the accused in this behalf, he ultimately admitted his guilt and to discharge his liability, he handed over to him two cheques including Ex.CW1/A. If considered in the light of these facts, then it could be held that the accused had issued the cheques in question for a lawful consideration to discharge his liability, which was very much enforceable in the sense that the complainant could have lawfully recovered this amount from the accused by way of civil action too. It cannot be held that since the accused was acting as a Manager, so he could not be held to have issued the cheques for consideration. Rather, it appears that to save himself from the penal action, he in his wisdom had through it proper to reimburse the amount unlawfully withdrawn by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erpolation in and fabrication of the cheques by adding one more figure '0" to make Rs. 30,000/- to Rs. 3,00,000/- and similarly adding one more figure '0' to make Rs. 40,000/- to Rs. 4,00,000/-." 11. As far as the ratio of this judgment same is not applicable to the facts of the present case, as the cheque was given to return the money, so the same is not applicable to the facts and circumstances of the present case, as the accused has infact withdrawn the money from the account of the complainant and utilized for some other purpose and in repayment of the same, he has issued the cheque. At the same point of time, there is nothing on record to show that it is the case of the accused that the cheque was interpolated, so the judgment is not applicable to the facts of the present case. 12. Hon'ble Apex Court in Kumar Exports vs. Sharma Carpets, (2009) 2 Supreme Court Cases 513, has held as under : "Applying the definition of the word "proved" in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the complainant in his statement has deposed that he had withdrawn the amount of rupees 5 lakhs, 2 days prior to giving it to the defendant but he failed to bring on record any receipt or other proof of such withdrawal of money from the bank. The High Court found the case of the complainant lacking to prove the offence under Section 138 of the Negotiable Instruments Act. 7. We have heard the learned counsel appearing for the appellant as also the learned counsel appearing for the respondent. The complainant has alleged that the money (loan) was advanced to the defendant on 20.5.2006 in relation to which the cheque was issued to him by the defendant on 16.1.2007. The cheque was for rupees 5 lakhs only, bearing No. 822408. It is of great significance that the cheque has not been disputed nor the signature of the defendant on it. There has been some controversy before us with respect to Section 139 of the Negotiable Instruments Act as to whether the complainant has to prove existence of a legally enforceable debt before the presumption under Section 139 of the Negotiable Instruments Act starts operating and burden shifts to the accused. Section 139 reads as follows : "139. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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