9911796707
TMI Blog2021 (12) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 138 for the discharge, in whole or in part, of any debt or other liability. True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to the material, if any adduced on record by the complainant - Once issuance of cheque and signatures thereupon are not denied, presumption starts in favour of holder of cheque and once such presumption starts, onus shifts upon the person issuing the cheque. This court is convinced and satisfied that complainant has successfully proved by leading cogent and convincing evidence that the accused issued cheque in question in discharge of his lawful liability, but the same came to be dishonored. Since despite issuance of legal notice, accused failed to make good the payment, learned court below, in the totality of evidence led on record by the complainant, rightly held accused guilty of having committed offence punishable under Section 138 of act and as such, no interference in the impugned judgment/order of conviction and sentence is called for. The present revision petition is dismissed being devoid of any merit. X X X X Extracts X X X X X X X X Extracts X X X X ..... below, accused preferred an appeal before learned Additional Sessions Judge, Sundernagar, but the same was dismissed vide judgment dated 21.12.2019. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting aside the judgments of conviction and order of sentence. 5. Vide order dated 2.3.2020, this court, while suspending the substantive sentence imposed upon the accused, directed him to deposit 15% of the compensation amount. Although aforesaid order was duly complied with, but the matter repeatedly came to be adjourned enabling the accused to pay the entire amount of compensation to the complainant. 6. Today during the proceedings of the case, learned counsel for the petitioner stated that the petitioner is not coming forward to impart instructions, as such, the matter can be heard and decided on merit. 7. Having heard learned counsel for the parties and perused material available on record this court finds no force in the submission made by learned counsel for the petitioner that the learned courts below have misread the evidence, as a consequence of which findings, detrimental to the accused have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though admitted that the notice was not sent to Jarol but self stated that the accused resided in Sundernagar. This witness denied the suggestion that the blank cheque was given to him by the accused and he had filled in the amount himself. 12. CW-2 Mahipal, Manager, Punjab National Bank Barmana and CW-3, Jiwanand, Cashier, State Bank of India, Sundernagar, corroborated the version of CW-1 with regard to presentation of cheque as well as dishonouring of the same on account of insufficient funds in the account of the accused. 13. CW-2 Mahipal deposed that the accused Vinod Kumar has his account in his bank. He also stated that the cheque CW-1/A is of his bank and same was received for collection from State Bank of India, Sundernagar and there were insufficient funds in the account of the accused and as such, same was returned vide Ext. CW-3/A, which bears his signatures in red circle, Ext. CW-2/A. In his cross-examination, this witness denied the suggestion that Ext. CW-1/A is not of his bank. He also deposed that account was in the name of Vinod Cloth House, which was being operated by Vinod Kumar. 14. CW-3 Jiwanand, Cashier, State Bank of India, Sundernagar, also stated that as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve money to his son and regarding it, cheque in question was issued. This witness admitted that a notice was sent and despite the notice, they had not returned the money. 19. If the entire evidence as discussed herein above, is perused in its entirety, it stands proved beyond doubt that the complainant had advanced sum of ₹ 50,000/- to the accused, who with a view to discharge his liability, had issued cheque but the same was dishonoured on account of insufficient funds. It also stands proved on record that the complainant after having received memo regarding dishonouring of cheque, served the accused with legal notice, which was not received by accused intentionally. Though, legal notice was sent through registered post but same could not be delivered to the accused as he was not found at the address but intimation was given to his mother, yet the accused did not bother to collect the same from post office as is evident from the statement of postman CW-5. 20. DW-1 Hari Chand, father of the accused has admitted in his cross-examination that though the notice was sent but despite that they did not return the money, meaning thereby that the complainant before instituting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 19. In order to discharge his burden, the accused put forward the defence that in fact, he had had the monetary transaction with the said Shri Jagdishbhai and not with the complainant. In view of such a plea of the accused-appellant, the question for consideration is as to whether the accused-appellant has shown a reasonable probability of existence of any transaction with Shri Jagdishbhai? In this regard, significant it is to notice that apart from making certain suggestions in the cross-examination, the accused-appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp paper was given to Shri Jagdishbha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the cheques of the accused lying with me by making obstinate writing has filed the false complaint through Shashimohan Goyanka. It is not true that no financial dealings have taken place between the complainant and the accused. therefore I also the complainant both at the time of evidence the accused at what place, on what date at what time, the amount taken has not been able to make clearly. (sic) It is not true that the blank stamp paper duly signed were lying in which obstinate writing has been made therefore the same has not been registered through sub registrar. It is not true that the dealings have been made between me and accused therefore there is my signature and the signature of the accused and the complainant has not signed. It is not true that any types of dealings between the accused and the complainant having not been done in my presence therefore in my statement no clarification has been given. It is not true that the accused in my presence as mentioned in the complaint any cheque has not been given. It is not true that I in collusion with the complainant to usurp the false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant but and instead, it bears the signatures of said Shri Jagdishbhai. We find nothing unusual or objectionable if the said writing does not bear the signatures of the complainant. The said writing is not in the nature of any bi partite agreement to be signed by the parties thereto. It had been a writing in the nature of acknowledgement by the accused-appellant about existence of a debt; about his liability to repay the same to the complainant; about his having issued seven post-dated cheques; about the particulars of such cheques; and about the fact that the cheques given earlier had washed away in the rain water logging. Obviously, this writing, to be worth its evidentially value, had to bear the signatures of the accused, which it does. It is not unusual to have a witness to such a document so as to add to its authenticity; and, in the given status and relationship of the parties, Shri Jagdishbhai would have been the best witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily against the accused-appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an 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 reason to interfere with the well reasoned judgments passed by the courts below. 28. Having scanned entire evidence available on record, this court is convinced and satisfied that complainant has successfully proved by leading cogent and convincing evidence that the accused issued cheque in question in discharge of his lawful liability, but the same came to be dishonored. Since despite issuance of legal notice, accused failed to make good the payment, learned court below, in the totality of evidence led on record by the complainant, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
