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TMI Blog2022 (1) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... Criminal Revision No. 36 of 2020 - - - Dated:- 23-9-2021 - Hon ble Mr. Justice Sandeep Sharma For the Petitioner : Mr. Naveen K. Bhardwaj, Advocate For the Respondent : Mr. Maan Singh, Advocate ORDER Instant criminal revision petition filed under Sections 397, 401 of Cr.P.C, lays challenge to judgment dated 21.12.2019, passed by learned Sessions Judge, Kullu, District Kullu, H.P. in Criminal Appeal No.37(51)/2019, titled Sh.Ram Chand vs. Sh. Dhian Singh , affirming the judgment of conviction and order of sentence dated 22.08.2019, passed by Chief Judicial Magistrate, Kullu, Lahaul and Spiti at Kullu, in case No. 1071-1/2015, whereby court below while holding petitioner-accused (hereinafter referred to as accused ) guilty of having committed an offence punishable under Section 138 of Negotiable Instruments Act, (hereinafter referred to as Act ) convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation to the tune ₹ 12,00,000/- to the complainant. 2. Precisely, the facts as emerge from the record are that respondent-complainant (hereinafter referred to as complainant ) instituted a complaint under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suspending the substantive sentence imposed by courts below, directed the accused to deposit balance compensation amount within a period of four weeks, but fact remains that aforesaid order never came to be complied with despite repeated opportunities granted by this Court and as such, this Court has no option, at this stage, but to decide the instant petition on its own merit. 6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds no illegality and infirmity in the judgment of conviction and order of sentence recorded by courts below and as such, no interference is called for. 7. It is not in dispute that factum with regard to issuance of cheque as well as signatures thereupon of accused has not been denied by the accused, rather in his statement under Section 313 Cr.P.C, he has stated that he had only borrowed sum of ₹ 3 lac from the complainant and out of which, he had paid ₹ 1, 70,00/-. Accused has categorically stated in his statement under Section 313 Cr.P.C that he had issued blank cheque as security to the complainant, but he has misused the same. Since, issuance of cheque as well as signat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid legal notice was refused to be received by accused, as is evident from acknowledgment Ext. CW-1/F. At this stage, Mr. Naveen K. Bhardwaj, learned counsel representing the petitioner argued that since legal notice was issued one day after expiry of statutory period of 30 days, issuance of statutory notice, if any, has no relevance and on this sole ground, case of the complainant deserves to be dismissed. 11. However, having carefully perused the aforesaid legal notice Ext. CW-1/E, this Court finds that complainant issued notice on 31.08.2015, which was well within the statutory period of one month from receiving information as to dishonouring of the cheque. Information with regard to dishonouring of cheque was received by the complainant on 1.8.2015 and on 30th day of said information, legal notice was issued to accused and as such, it cannot be said that legal notice was issued beyond statutory period of 30 days. 12. Leaving everything aside, once factum with regard to issuance of cheque as well as signatures thereupon are admitted by accused, presumption as available under Section 118 and 139 of the Act, is applicable in favour of complainant. No doubt, aforesaid pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Jagdishbhai and another factor relied upon is that Shri Jagdishbhai had signed on the stamp paper in question and not the complainant. 19.1 We have examined the statement of Shri Jagdishbhai as also the said writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant. 19.2 The said witness Shri Jagdishbhai, while pointing out his acquaintance and friendship with the appellant as also with the respondent, asserted in his examination-in-chief, inter alia, as under: Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other. The accused had necessity of money in his business, in my presence, had demanded ₹ 22,50,000/- (Rupees twenty two lacs fifty thousa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore 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 in support of the complaint of Shashimohan Goyanka is giving false statement. 19.4 The statement of Shri Jagdishbhai does not make out any case in favour of the accused-appellant. It is difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of bringing on record such material which could tilt the preponderance of probabilities in his favour. 19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under : Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the financial difficulties having been arised, I have taken ₹ 22,500,000/- (Rupees twenty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lationship 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-appellant. 14. 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:- 23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 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. 15. Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, or any debt or other liability. Similarly, Section 118 of the Act provides that unless contrary is proved , that the holder of the cheque received the cheque in discharge, in whole or in part, of a debt or liability. True, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 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 Court which would otherwise tantamount to gross miscarriage of justice. 18. 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, and as such, there is no occasion, whatsoever, to exercise the revisional power. 19. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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