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2004 DIGILAW 1125 (PNJ)

Surya Kant v. Rajesh Mittal

2004-10-04

M.M.KUMAR

body2004
Judgment M.M.Kumar, J. 1. This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity Cr.P.C.) prays for setting aside the judgment dated 1.7.2004 passed by the Additional Sessions Judge, Yamuna Nagar at Jagadhri accepting the view expressed by the Judicial Magistrate, Ist Class, Jagadhri dated 4.12.2003. Both the Courts have convicted the petitioner for an offence committed by him under Section 138 of the Negotiable Instruments Act, 1881 (for brevity the Act) and have sentenced him to undergo rigorous imprisonment for a period of six months with a fine of Rs. 2,000/-. 2. The complainant-Smt. Rajesh Mittal instituted a complaint against the petitioner with the allegations that the accused-petitioner had issued cheque No. 00J-394581 dated 15.12.1995 drawn on Punjab National Bank, Indira Market, Jagadhri for an amount of Rs. 51,680/-. On presentation of the cheque by the complainant, it was returned to him on 16.12.1995 with an endorsement insufficient funds. On 20.12.1995, statutory notice was served on the petitioner which was replied by him but he failed to make the payment by complying with the notice. After recording preliminary evidence under Section 200 Cr.P.C., the learned Magistrate summoned the petitioner on 3.3.1997. 3. The trial Court accepted the evidence of Yash Pal, Officer, Punjab National Bank who appeared as CW-1 and stated that the cheque had been sent to their Bank for payment on 16.12.1995 and only a sum of Rs. 968.02 paise was available in account of the petitioner. He further deposed that even earlier, there were no sufficient funds in the account of the petitioner to satisfy the amount stated in the cheque. A certified copy of the statement of account is Ex. C2. The cheque was returned with the endorsement of insufficient funds which is Ex.C3. Further reliance was placed on the statement made by Puran Chand, Clerk who has been working in the Bank of India. According to this witness, the cheque was deposited with their Bank on 15.12.1995 and the same was sent for clearance to the Punjab National Bank. He also proved Ex. C3, the endorsement showing that the cheque was returned by the Punjab National Bank. Thereafter, the complainant-Smt. Rajesh Mittal herself appeared as CW-3 and deposed in terms of the complaint. According to the complainant a statutory notice Ex. C7 dated 20.12.1995 was served upon the petitioner through her counsel vide postal receipt Ex. He also proved Ex. C3, the endorsement showing that the cheque was returned by the Punjab National Bank. Thereafter, the complainant-Smt. Rajesh Mittal herself appeared as CW-3 and deposed in terms of the complaint. According to the complainant a statutory notice Ex. C7 dated 20.12.1995 was served upon the petitioner through her counsel vide postal receipt Ex. C8 and A.D. receipt Ex. C9. She has further, deposed that the petitioner had assured her that the cheque would be encashed but neither the cheque was encashed nor he had repaid the amount. The defence evidence produced by the petitioner has not been accepted because there is no dispute with regard to signatures on the cheque Ex. C1 and a valid presumption under Section 118(g) of the Act has been raised. It has also been presumed that the cheque was issued for an existing liability and for consideration. The petitioner failed to show that there was no consideration or that he did not issue the cheque. 4. On appeal, the findings recorded by the learned trial Court were approved and it has been found that no worthwhile argument has been advanced by the petitioner to accept the appeal. The learned Additional Sessions Judge took the view that the defence of the petitioner would rather make out a case of commission of offence under Section 420 IPC when it was argued that the petitioner had closed the accounts in 1992 or 1993. Reference in this regard may be made to paragraph 9 of the judgment which reads as under : "9. After considering the rival contentions of the parties, I find that, as far as, the signature on the cheque are concerned, the same are not disputed. The accused has not led any evidence to show that this cheque was not issued from the cheque issued to the accused. If he has closed the account, then it rather makes out a case of offence under Section 420 IPC also. However, at the same time, if the complainant has opted to prosecute the accused under Section 138 of the Negotiable Instruments Act, the presumption under the law is that cheque was issued for legal liability. In the cross-examination, she has stated the amount given to the accused to be Rs. 48,000/-. She has also stated that the remaining amount was on account of interest for which this cheque was issued. In the cross-examination, she has stated the amount given to the accused to be Rs. 48,000/-. She has also stated that the remaining amount was on account of interest for which this cheque was issued. The authorities relied upon by counsel for the appellant are applicable on the facts of the present case. The onus upon accused has not been discharged that the cheque was issued without any legal liability. The presumption as such fully stands repelled." 5. Mr. Hari Om Sharma, learned Counsel for the petitioner has submitted that as a matter of fact the petitioner has closed the account relating to the cheque Ex.C1 in the year 1994 and there was no reason for issuing the cheque on 15.12.1995. According to the learned Counsel, the petitioner has already intimated to the Bank on 29.3.1992 that cheque No. 00J-394581 was lost and the letter was produced as Mark B. 6. Mr. Deepak Gupta, learned Counsel for the complainant-respondent No. 1 has argued that there are findings of facts recorded by both the Courts below with regard to issuance of cheque by the petitioner. He has further submitted that there are further findings that the cheque was dishonoured on account of insufficient funds. The learned Counsel has complained that the amount of Rs. 51,680/- belonging to the complainant has not been paid since 15.12.1995 and by any stretch of imagination by adding interest, it must have become double. 7. After hearing learned Counsel for the parties, I am of the considered view that once it is proved that the cheque has been issued by the petitioner and the same has been presented to the Bank which has returned it with the endorsement that the funds were insufficient, then, drawer of cheque cannot escape from liability under Section 138 of the Act. The signature on cheque has not been disputed. Once the cheque is admittedly signed by the petitioner, then the presumption envisaged under Section 118 of the Act would arise with regard to consideration and holder in due course. Reliance in this regard can be placed on the judgments of the Supreme Court in the cases of Bharat Barrel and Drum Mfg. Co. Once the cheque is admittedly signed by the petitioner, then the presumption envisaged under Section 118 of the Act would arise with regard to consideration and holder in due course. Reliance in this regard can be placed on the judgments of the Supreme Court in the cases of Bharat Barrel and Drum Mfg. Co. v. Amin Chand Payrelal, 1999(2) R.C.R.(Civil) 615 : 1999(3) SCC 25; K. Bhaskaran v. Sankaran Vaidhyan Balan, 1999(4) R.C.R.(Criminal) 309 : 1999(7) SCC 510; K.N. Beena v. Muniyappan, 2001(4) R.C.R.(Criminal) 545 : 2001(8) SCC 458 and Goaplast (P) Ltd. v. Chico Ursula DSouza, 2003(2) R.C.R.(Criminal) 131 : 2004(1) Apex Criminal 55 : 2003(3) SCC 232. It is further evident that a rebuttable presumption would arise that the complainant was holder in due course and there was dishonesty on the part of the petitioner as envisaged by Section 118(g) of the Act. The aforementioned statutory presumption raised in favour of the complainant could have been rebutted but the petitioner has failed to produce any evidence discharging the heavy onus of proof. The mere fact that the petitioner has closed his account in the year 1994 would not result into a conclusion that the cheque was not issued on 15.12.1995. In such a situation, the offence would become even more serious because after closing of account, the petitioner could not have issued a cheque. No evidence has been led showing that cheque was stolen by the complainant and therefore, there is nothing on the record to conclude that there is illegality or impropriety with regard to any finding. 8. Even otherwise, the revisional power of this Court under Section 397 read with Section 401 Cr.P.C. is confined to exercise the revisional power to examine the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court. It is to see that justice is to be done in accordance with the recognised rules of criminal jurisprudence and the subordinate courts do not exceed the jurisdiction or abuse the power vested in them or to prevent miscarriage of justice. For the aforementioned view, reliance could be placed on the judgment of the Supreme Court in the case of Krishnan v. Krishnaveni, 1997(1) R.C.R.(Criminal) 724 : 1997(4) SCC 241. For the aforementioned view, reliance could be placed on the judgment of the Supreme Court in the case of Krishnan v. Krishnaveni, 1997(1) R.C.R.(Criminal) 724 : 1997(4) SCC 241. Therefore, I do not find any illegality or impropriety either in the order of conviction or sentence warranting exercise of jurisdiction under Section 397 read with Section 401 Cr.P.C. The orders of the trial Court as well as of the learned Additional Sessions Judge are in accordance with law and are hereby affirmed. 9. For the reasons recorded above, this petition fails and the same is dismissed.