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TMI Blog2024 (10) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... of his having committed offence punishable under Section 138 of the Act - there is no evidence worth credence suggestive of the fact that Cheque in question was issued as a security, but even if it is presumed that Cheque in question was issued as a security, that may not be of much help to the accused for the reason that by now it is well settled that Cheque, if any, issued as a security can also be presented for encashment, if amount taken or promised to be repaid is not paid. This Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties. Since after having carefully examined the evidence in the present case, this Court is unable to find any error ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict Shimla, Himachal Pradesh. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 02.02.2023/20.02.2023, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove. 4. Though, at the first instance, accused preferred an appeal in the Court of learned Additional Sessions Judge, Rohru, Himachal Pradesh, however, same was partly allowed by the learned Appellate Court vide judgment dated 17.08.2023, in which accused was accused was ordered to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs.2,00,000/- to the complainant. In the aforesaid background, petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below. 5. Vide order dated 08.12.2023, Co-ordinate Bench of this Court stayed the substantive sentence imposed by the learned Court below, subject to petitioner/accused depositing 30% compensation amount and furnishing personal bond in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned signatures. Otherwise also, if the documents pressed into service by the accused is perused, it can be safely concluded that it was executed in the month of November, 2015 and clarifies that accused had issued four Cheques i.e. two Cheques for Rs.2,00,000/- each to complainant and two Cheques for Rs.60,000/- and Rs.20,000/- to complainant s son for discharging his liability qua the borrowed amount. It also suggest that accused had made a payment of Rs.8,00,000/- to the complainant and there was no outstanding amount either towards complainant or his son as on 30.11.2015. However, since there is no mention of Cheque in question on the receipt Mark-DX1, learned Courts below rightly ignored the afore receipt, especially when complainant specifically stated that accused had issued Cheque in question towards discharge of lawful liability amounting to Rs.2,00,000/-, borrowed by him in the month of March, 2017. Once factum with regard to issuance of Cheque as well as his signature thereupon never came to be refuted, no illegality otherwise can be said to have been committed by Courts below, while invoking Section 118 and 139 of the Act, which speak about presumption in favour of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cashment, if amount taken or promised to be repaid is not paid. 11. 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 transaction, a loan is advanced and the borrower agrees to repay 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusion 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. 15. 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. 16. 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 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 apprec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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