Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 437 (PNJ)

Ganga Prasadh v. Lalat Kumar

2008-02-18

HARBANS LAL

body2008
Judgment Harbans Lal, J. 1. This revision is directed against the order dated 12.10.2007 rendered by the Court of learned Addition Sessions Judge, Faridkot, whereby he dismissed the appeal preferred against the judgment/order of sentence dated 20.4.2007 passed by the Court of learned Chief Judicial Magistrate, Faridkot, whereby he convicted and sentenced the accused to undergo rigorous imprisonment for one year and to pay a fine of Rs. 10,000/- and in default of payment of fine, to further undergo rigorous imprisonment of three months under Section 138 of The Negotiable Instruments Act, 1881 (for brevity, the Act). 2. Tersely put, facts of the prosecution case are that on 24.6.2003, Ganga Prashad accused borrowed a sum of Rs. 1,82,000/- from Lalit Kumar, complainant with a promise to return the same on demand together with interest at the rate of Rs. 2/- per cent per month. In order to discharge his liability when the debt amount was demanded, Ganga Prasad issued cheque in the sum of Rs. 2,40,000/- dated 30.11.2004 drawn on the Faridkot Central Cooperative Bank Limited, Faridkot (for short, the Bank). When the cheque was presented for encashment to the bank, the same was bounced with the remarks insufficient funds vide Memo dated 2.12.2004 issued by the Bank. On receipt of this intimation the complainant issued a Registered notice dated 11.12.2004 calling upon the accused to make payment within 15 days but the notice was received back with the remarks as unclaimed. The payment was not made even thereafter. On these allegations, Lalit Kumar lodged a complaint under Section 138 of the Act. 3. After recording preliminary evidence, the accused was summoned. On his appearance in the Court, he was served with a notice under Section 138 of the Act, to which he did not plead guilty and claimed trial. 4. To bring home guilt against the accused, the complainant by deposing as PW-1, proved original cheque, Exh. P-1, Memo, issued by the Bank, Exh. P-2, Carbon copy of notice, Exh. P-3, Receipt Exh. P-4 and undelivered registered envelope, Exh. P-5. Veena Kumari, Assistant Manager of the Bank, PW-2 has proved Exh. P-6, the entry in the register regarding return of the cheque, Exh. P-7 Statement of account of the accused, Exh. P-8 Memo, dated 2.12.2004, Exh. P 9 copy of account opening form of the accused. P-3, Receipt Exh. P-4 and undelivered registered envelope, Exh. P-5. Veena Kumari, Assistant Manager of the Bank, PW-2 has proved Exh. P-6, the entry in the register regarding return of the cheque, Exh. P-7 Statement of account of the accused, Exh. P-8 Memo, dated 2.12.2004, Exh. P 9 copy of account opening form of the accused. Bharpur Singh, Junior Officer of Bank of Punjab, Kotkapura as PW-3 has proved the Ex. P-10, P-ll and P-12. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He has denied issuance of cheque as well as the receipt of alleged debt amount. 6. After hearing the learned Counsel for the parties and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feling aggrieved therewith, the accused-appellant preferred an appeal, which met failure vide order dated 12.10.2007 handed down by the Court of learned Additional Sessions Judge, Faridkot. 7. I have heard Mr. Surinder Garg, Advocate, counsel for the petitioner and Mr. Ashish Gupta, Advocate, counsel for respondent. 8. Mr. Feling aggrieved therewith, the accused-appellant preferred an appeal, which met failure vide order dated 12.10.2007 handed down by the Court of learned Additional Sessions Judge, Faridkot. 7. I have heard Mr. Surinder Garg, Advocate, counsel for the petitioner and Mr. Ashish Gupta, Advocate, counsel for respondent. 8. Mr. Surinder Garg, Advocate, counsel for the petitioner, making a short shrift of his arguments, canvassed at the bar that (a) the complainant/respondent has failed to prove passing of the consideration to the petitioner and that if the alleged cheque was issued by him (petitioner), the same was not issued towards the discharge of any liability; (b) while appearing as PW-1, the respondent-Lalit Kumar has admitted in his cross-examination that the cheque was not signed in his presence and the same was sent through Bunty son of the Petitioner; (c) the signatures of the petitioner on the cheque are in blue ink, whereas the cheque has been filled in black ink; (d) the characteristics of the writing of the signatures as well as the cheque appear to be different; (e) the son of the petitioner was working with complainant-respondent on his shop; (f) the complainant-respondent has stated that he had given the amount to the petitioner from his personal account and the same has not been shown by him in his income-tax return, which indicates that the alleged amount was never given to the petitioner; (g) the complainant-respondent has faltered to prove the nature of the transaction and these circumstances cumulatively belie the borrowing of the alleged amount by the petitioner and issuance of the alleged cheque. 9. To controvert these submission, Mr. Ashish Gupta, Advocate, counsel fro the respondent, has assiduously pressed into service that if the petitioner had entertained any doubt with regard to the genuineness of his signatures on the cheque, Exh.P-1, he would have examined some hand-writing expert but the record does not speak so. He further maintained that if there had been no liability, the petitioner would not have issued this cheque in favour of the respondent-complainant. 10. On giving a thoughtful consideration to the rival contentions, the view I am disposed to take is that the submission made by Mr. Surinder Garg, Advocate, counsel for the petitioner, are untenable for the reasons to be recorded hereinafter. 11. 10. On giving a thoughtful consideration to the rival contentions, the view I am disposed to take is that the submission made by Mr. Surinder Garg, Advocate, counsel for the petitioner, are untenable for the reasons to be recorded hereinafter. 11. Of course, it is in the cross-examination of Lalit Kumar, complainant-respondent, PW-1 that the petitioner did not sign the cheque in his presence and that his signatures are with blue pen though the columns of the same have been filled with black pen and that both the writings appear to be different in nature but the fact remains that the petitioner has not couraged to examine any handwriting expert to demonstrate that Exh. P-1 does not bear his signatures or that the ink used in filling the body of the cheque is different from the ink used in appending the signatures. In the opening sentence of his cross-examination, a question has been put to the complainant that the accused had sent the cheque to him through his son. It imports that the petitioner has admitted the sending of the cheque to the complainant through his son. In Re: Suryalakshmi Cotton Mills Ltd v. Rajvir Industries ltd. 2008(1) R.C.R. (Crl.) 652, it has been observed by the Apex Court that "filling up of the blanks in cheque by itself would not amount to forgery." Thus, for a little while if it is assumed, though it is not so, that the blanks in the disputed cheque were filled later on, this circumstance in itself would not amount to forgery. Section 139 of the Act reads as under: 139. Presumption in favour of holder.- 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, of any debt or other liability. 12. From a bare reading of the above language, it follows that there is a legal presumption that the cheque was issued for discharging an antecedent liability and the presumption can be rebutted only by the person who drew the cheque. This presumption is in favour of the holder of the cheque. As observed in re: K.I. George v. Muhammed Master (1999)97 Company Cases 664, "the presumption available under Section 139 of The Negotiable Instruments Act, 1881 , can be, rebutted by the accused by adducing the evidence. This presumption is in favour of the holder of the cheque. As observed in re: K.I. George v. Muhammed Master (1999)97 Company Cases 664, "the presumption available under Section 139 of The Negotiable Instruments Act, 1881 , can be, rebutted by the accused by adducing the evidence. So, the burden of proof is on the accused and the evidence available on record will have to be appreciated by bearing in mind the above fact regarding burden of proof." 13. Reverting back to the facts of the instant case, the petitioner has not adduced even a scintilla of evidence operating as rebuttal to the presumption arising under Section 139 ibid. In his statutory statement, he has merely denied the issuance of cheque as well as the obtaining of the loan amount from the complainant. This bald plea having not been substantiated by any cogent, convincing and clear evidence, proprio-vigore would not be sufficient to draw the presumption that the cheque, Exh.P-1 was not issued in the discharge of any debt or other liability, Suffice it to say that this presumption has gone un-rebutted for want of evidence on record. Doubtless that it is in the cross-examination of Lalit Kumar PW-1 that he has not shown this amount in the income-tax return but it is apt to be borne in mind that as testified by him, he had given this amount from his personal account and for that reason, he might not have felt the necessity to reflect the same in his income-tax return. 14. In view of the above discussion, no interference is warranted in the judgments delivered by the Courts below. Consequently, the conviction of the petitioner is upheld. At this juncture, Mr. Garg made a misericordious submission that the petitioner has been facing the agony of trial since 1.9.2005 and he has undergone more than 3 months of the actual sentence and in these premises, the ends of justice will be met if the sentence is reduced to the one already undergone. I have seriously cogitated this prayer. Taking into consideration the entirety of facts, the sentence of imprisonment is reduced to the one already undergone. With this modification, this revision fails and is dismissed.