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2007 DIGILAW 195 (JK)

Rajeshwar Singh v. S. Narinder Pal Singh Saini

2007-09-17

VIRENDER SINGH

body2007
1. The instant appeal has been preferred by complainant, Rajeshwar Singh, against an acquittal earned by respondent, Narinder Pal Singh Saini, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred to as the Act) vide impugned judgment of learned Judicial Magistrate Ist Class, Jammu, dated 24.05.1999. 2. Record reveals that the notice was issued to the respondent on the point of admission of the appeal. He consequently put in appearance through his Advocate and sought time to file objections. Thereafter neither the respondent nor his counsel appeared in the Court. Consequently his bailable warrants of arrest were issued. Ultimately vide order dated 18.08.2000, Special Leave to Appeal was granted under Section 417(2) of the Code of Criminal Procedure and the appeal was admitted. Thereafter fresh bailable warrants were again issued to secure the presence of the respondent. Since his appearance could not be secured through bailable warrants, non-bailable warrants were also issued for the same purpose and ultimately despite all coercive methods adopted by this Court for securing his presence, the Registry was directed to take steps for his written publication in terms of Section 87 of the Code of Criminal Procedure and the same was done in a widely circulated newspaper of Jammu and Kashmir Province State Times. Despite that the respondent did not appear. Order dated 03.05.2002 indicates that moveable and immovable property of the respondent was also ordered to be attached. Till date, the respondent has not put in his appearance. 3. Mr. Salaria contends that since the respondent-accused had once put in appearance personally and through his counsel also, may be at the motion stage, his presence need not be secured now for the purpose of decision of the instant appeal, which can be decided on merits. He states that it is an old appeal of year 2000 pending in this Court for securing the presence of respondent only. In support of his contention, Mr. Salaria relied upon the judgment of Honble Apex Court rendered in Mohammed Dastagir v. The State of Madras, AIR 1960 Supreme Court 756. 4. Keeping in view the flashback of the aforesaid facts, I do not want to detain myself further and intend to decide the instant appeal on merits. 5. Heard Mr. Salaria at length and with his assistance, perused the impugned judgment and the entire records minutely.Mr. 4. Keeping in view the flashback of the aforesaid facts, I do not want to detain myself further and intend to decide the instant appeal on merits. 5. Heard Mr. Salaria at length and with his assistance, perused the impugned judgment and the entire records minutely.Mr. Salaria contends that a very short controversy is involved in this case. The respondent had issued a cheque of Rs.17,000/- in favour of the appellant on 12.04.1996 drawn on Citizens Co-operative Bank Ltd., branch Transport Nagar, Jammu. On presentation by the appellant in his bank, it was dishonoured with the endorsement Payment stopped by the drawer. He has now earned acquittal by the trial Court on the ground that it is not specifically pleaded in the complaint by the appellant that the cheque issued by the respondent/accused was dishonoured because of insufficient funds in his account or that it exceeded the amount arranged to be paid from his account and, therefore, Section 138 of the Act is not attracted. The view further is that it is nowhere stated in the Court by the appellant or his witnesses that the payment was stopped by the accused because of insufficient funds or on account of exceeding the amount. In this regard the attention of this Court has been drawn to the relevant observations from the impugned judgment, which read thus:- In the present case, it is admitted case of both the parties that the cheque has been returned by the bankers of the accused as unpaid with the endorsement payment stopped by the drawer. Now the main question to be decided in this case is whether the cheque has been returned by the bank of the accused as unpaid either because of the amount standing to the credit of account was insufficient to honour the cheque in question or that it exceeded the amount arranged to be paid from that account of the accused Bank. If it is proved by the complainant either of the condition as mentioned in Section 138 then it is certainly held that the offence under Section 138 is committed. In the complaint it is no where specifically alleged by the complainant that the cheque was dishonoured and returned unpaid by the bankers of the accused for want of sufficient funds. If it is proved by the complainant either of the condition as mentioned in Section 138 then it is certainly held that the offence under Section 138 is committed. In the complaint it is no where specifically alleged by the complainant that the cheque was dishonoured and returned unpaid by the bankers of the accused for want of sufficient funds. The complainant in his statement also nowhere deposed that the cheque was returned unpaid by the bankers of the accused for want of sufficient funds in the account of the accused. The complainants witness namely Sanjay Takker, in his statement has specifically deposed that the cheque in question was presented in his bank on 15-4-1996 for clearing and when he checked the ledger of the accused he found that the balance amount of Rs.20940/- in the account of the accused and out of this the bank could easily make the payment of Rs.19,340/-, whereas the cheque amount was of Rs.17,000/- and this amount the Bank could easily make. This witness in the cross-examination also admitted that on 12-4-1996 when the cheque was drawn by the accused the balance amount of the firm was Rs.29,340/- in the account and on 15-4-1996 the balance amount was Rs.20940/-. So from the statement of this complainants witness it is clearly established that there was sufficient amount lying in the account of the accused maintained in his bank. So from the evidence of this witness it cannot be said that the cheque was returned by the bank of the accused for want of sufficient funds. 6. Mr. Salaria submits that the view taken by the learned trial Court is not sustainable as presumption under Section 139 of the Act is against the drawer that it was issued for discharge of debt or existing liability. To strike his view point home, Mr. 6. Mr. Salaria submits that the view taken by the learned trial Court is not sustainable as presumption under Section 139 of the Act is against the drawer that it was issued for discharge of debt or existing liability. To strike his view point home, Mr. Salaria relies upon a judgment rendered by the Honble Apex Court in M/s. M.M.T.C. Ltd. and another v. M/s. Medchl Chemicals and Pharma (P) Ltd. and another 2002 Criminal Law Journal 266, wherein their Lordships while dealing with quashing of a complaint filed under Sections 138/142 of the Act observed that a complaint filed under Section 138 of the Act is not to be quashed on dishonouring of the cheque on the ground of instructions to stop payment as the presumption under Section 139 of the Act is that the cheque was received by the holder for discharge of debt or liability. It was also held in the aforesaid judgment that the Court while exercising its inherent powers cannot quash the complaint on the ground that the cheques were not given for any debt or liability and there is no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. Mr. Salaria submits that no doubt presumption is otherwise rebuttable but for that the strict onus is on the drawer of the cheque. In the case in hand, the same is not discharged. 7. Mr. Salaria then submits that in the aforesaid judgment, their Lordships have also considered the other case titled M/s Modi Cements Ltd. v. Kuchil Kumar Nandi 1998 Criminal Law Journal 139 ( the judgment discussed by learned trial Court, but distinguished on facts). According to the learned counsel, the approach adopted by the Court below is not sustainable in the light of the facts of the case. 8. Mr. Salaria while strengthening his arguments, relies upon a latest decision of Honble Apex Court rendered in M. S. Narayana Menon alias Mani v. State of Kerala and another (2006) 6 Supreme Court Cases 39, and submits that even if one goes by the reply tendered by the respondent/accused to the legal notice sent by the appellant, it can not be said that the onus is discharged and, therefore, presumption that negotiable instrument was drawn for consideration has to be drawn against the drawer only. 9. On the basis of aforesaid submission, Mr. 9. On the basis of aforesaid submission, Mr. Salaria prays for setting aside the impugned judgment of acquittal of the respondent-accused with a further prayer that he be convicted under Section 138 of the Act. 10. I find substance in the submissions advanced by Mr. Salaria. In case Electronics Trade and Technology Development Corporation Ltd. v. Indian Technologists and Engineers (Electronics) (P) Ltd., & another 1996 (2) SCC 739, their Lordships of Honble Supreme Court while dealing with almost the same set of circumstances where drawer had issued instructions of stop payment observed that on dishonouring of cheque, Section 138 of the Act is attracted. It was further observed that Section 138 would not have attracted, had the drawer sent a prior notice to the payee not to present the cheque. Admittedly, that is not the situation in this case. 11. In M/s Modi Cements Ltd.s case (supra), Electronics Trade and Technology Development Corporation Ltd.s case (supra) and another case titled K. K. Sidharthan v. T. P. Praveena Chandran & Anr., (1996) 6 SCC page 369 were considered. 12. In my view the judgments cited by Mr. Salaria squarely cover his case. After appreciating the case in hand on its facts and following the ratio of aforesaid judgments of Honble Supreme Court, I do not feel hesitant in holding that the impugned judgment of acquittal of the respondent is not sustainable and as such deserves to be set aside. The present case calls for the conviction of the respondent for the charge of Section 138 of the Act. Ordered accordingly. 13. The net result is that the instant appeal is allowed and the respondent, Narinder Pal Singh Saini, is convicted for the offence punishable under Section 138 of the Act. He is sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.10,000/-, in default thereof to further undergo two months simple imprisonment. 14. Necessary steps be taken forthwith to take the respondent into custody for serving his substantive sentence for which a copy of the judgment be also sent to SSP concerned. Record reveals that despite coercive methods already adopted by this Court, the respondent could not be apprehended, though he is resident of Jammu only. 14. Necessary steps be taken forthwith to take the respondent into custody for serving his substantive sentence for which a copy of the judgment be also sent to SSP concerned. Record reveals that despite coercive methods already adopted by this Court, the respondent could not be apprehended, though he is resident of Jammu only. Any how, at that stage the appearance of the accused was required during the pendency of the appeal and now he has suffered conviction and sentenced substantively for the charge. Therefore, a sincere effort should be made once again by the law enforcing agency to arrest him, lest the impression goes that get away out of the way of justice, after all, she is blind. If a law violator goes unpunished, it would fracture the criminal justice system.