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2010 DIGILAW 797 (PNJ)

Tarlochan Singh v. State Of Punjab

2010-02-04

A.N.JINDAL

body2010
Judgment A.N.Jindal, J. 1 This revision petition is directed against the judgment dated 26.03.2009, passed by Additional Sessions Judge, Fast Track Court, Ludhiana, dismissing the appeal preferred by the accused (herein referred as "the petitioner") against the judgment dated 23.01.2007, convicting him under Section 138 of the Negotiable Instruments Act and sentencing him to undergo rigorous imprisonment for a period of 1-1/2 year and to pay a fine of Rs. 2,000/-. 2 A brief resume of facts is that the complainant-respondent No. 2 (herein referred as the respondent) and the petitioner are the relatives. The petitioner had approached the respondent in the month of August, 2003 and requesting her for some Financial help in connection with business Purposes. The respondent, being a close relative, agreed to the same and advanced him a sum of Rs. 5,65,000/- on account of loan to the petitioner on the assurance that he will repay the loan on receipt of the payment from the market within a short span of time. In the year 2004, the respondent approached the petitioner with a request to return her the loan but the petitioner again sought six months time. After the expiry of said six months, the respondent again approached the petitioner but he started delaying the matter on one pretext or the other. Ultimately, in order to discharge his legally enforcement liability, the petitioner issued a cheque bearing No. 105132 F dated 01.06.2005, for Rs. 5,65,000/- drawn on UCO Bank, Branch Khanna out of his account No. 9545. On presentation of the said cheque for encashment through her banker i.e. Jammu & Kashmir Bank, Branch Khanna, the said cheque was received back dishonoured vide memo dated 02.06.2005 from UCO Bank, Khanna, with the remarks "funds insufficient". After issuing legal notice dated 14.06.2005, upon the petitioner, the present complaint was filed. 3 After recording the preliminary evidence, process was issued against the petitioner. Upon service, the notice of accusation issued to which he denied and opted to contest. 4 In order to substantiate the charges, the respondent-complainant examined herself as C.W..1, Chaman Lal, Manager of Jammu & Kashmir Bank(C.W. 2), Gurjeet Singh record incharge UCO Bank (C.W. 3) and closed her evidence. When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing against him and pleaded false implication. He further explained that his father had obtained Rs. When examined under Section 313 Cr.P.C, the accused denied all the incriminating circumstances appearing against him and pleaded false implication. He further explained that his father had obtained Rs. 50,000/- as loan from the respondent-complainant in the year 2005. At that time a blank signed cheque was demanded by the respondent. Thereafter, the said cheque was fabricated by entering the huge amount. In defence, the petitioner examined Gurmail Singh, Taxation Clerk (D.W. 1) and his father (D. W. 2). On scrutiny of the evidence, the accused was convicted and sentenced accordingly. His appeal was also dismissed. 5 The prime poser put to this Court by the learned counsel for the petitioner is that the complainant has failed to shift the onus with regard to issuance of the cheque in her favour against any legally enforceable liability. As such, it is a case of mis-utilisation of the cheque which was issued by his father against a loan of Rs. 50,000/- which he had received from the respondent. 6 The respondent is a lady and is related to the petitioner. Money transactions between the petitioner and the respondent stands admitted. However, case of the petitioner is that his father Balbir Singh had received a loan of Rs. 50,000/- whereas according to the complainant/respondent that cheque shows against the payment of loan of Rs. 5,65,000/-. As regards the advancement of loan, the respondent has led sufficient evidence to prove that the amount was advanced to the petitioner. She was cross-examined at length on this point and she explained that she had taken a sum of Rs. 4,50,000/- as loan against the F.D.R. and she had received a sum of Rs. 65,000/- from her mother and had advanced the amount of Rs. 5,65,000/- to the petitioner. With regard to the source of income, she has duly stated that her husband had gone to Germany and had brought money from there. But to the contrary the petitioner has neither led any evidence nor proved he fact with regard to the issuance of the cheque against the loan of Rs. 50,000/-, but to talk of appearing himself in the witness box, he even did not examine any witness to prove the plea as set up by him. Admittedly, the cheque bears the signatures of the petitioner at three places which indicates that the cheque was issued intentionally by the petitioner to discharge the legally enforceable liability. 50,000/-, but to talk of appearing himself in the witness box, he even did not examine any witness to prove the plea as set up by him. Admittedly, the cheque bears the signatures of the petitioner at three places which indicates that the cheque was issued intentionally by the petitioner to discharge the legally enforceable liability. Though the returns for the year 2003-04, 2004- 05, 2005-06 and 2006-07 were produced on record by Gurmail Singh (D.W. 1) as Ex. D.l to Ex. D.4 but these returns do not help the case of the petitioner. No entry showing the delivery of cheque by the petitioner to the respondent finds mentioned in the returns. Thus, the cheque cannot be termed as having been given for security purposes as after the receipt of loan, the issuance of the cheque can well be presumed to be in discharge of legally enforceable liability. Unless, the accused fails to prove the return of the loan amount, the cheque cannnt be termed to be mere security in the said loan transaction. Though.the petitioner has stated that it was a blank cheque and it was not filled by him but that would not import the factum of forgery and the filling of the same cannot be attributed to the respondent. It was observed by the Apex Court in case Suryalakshmi Cotton Mills Limited v. Rajvir Industries Limited and others 2008(1) R.A.J. 183 : 2008 (1) R.C.R. (Criminal) 652, that filling up of the blanks in a cheque by itself would not amount to forgery. Thus for a little while if it is assumed that though there are no reason that the blanks in the disputed cheques were filled up later on, this circumstance in itself would not amount to forgery. Thus for a little while if it is assumed that though there are no reason that the blanks in the disputed cheques were filled up later on, this circumstance in itself would not amount to forgery. 7 Now coming to the question of presumption in favour of the holder, it would he appropriate to reiterate Section 139 of the Negotiable Instruments Act as under :- "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." 8 Thus, the aforesaid provision if barely interpreted, then it Would follow, that there is a legal presumption that the cheque was issued for discharging an antecedent liability and the presumption could be rebutted only by the person who drew the cheque. This presumption is in favour of the holder of the cheque. It was observed in case K.I. George v. Muhammed Master, 1999(3) R.C.R.(Criminal) 396 : (1999) 97 Company Cases 664, that presumption available under Section 139 of the Negotiable Instruments Act can be rebutted by the accused by adducing evidence. So, the burden of proof is on the accused and the evidence available or record will have to be appreciated by bearing in mind the above fact regarding burden of proof. 9 While taking the facts of the present case, it is noticed that the petitioner had not adduced even a single witness operating as rebuttal to the presumption arisen under Section 139 I.P.C. whereas the respondent has led sufficient evidence to hold that the petitioner was to pay the loan against which he had issued a cheque The balled plea as set up by the accuscd has not been substantiated by the clear evidence, thus, it would be sufficient to draw the presumption that the cheque was issued in discharge of debt and the said presumption had gone unrebutted for want of evidence on the record. No other argument has been advanced. 10 As regards the quantum of sentence, it may be observed that the petitioner issued a cheque on 01.06.2005 and even till today nothing has been paid by him to the respondent and is still contesting the false plea which remained unsubstantiated before both the Courts below. No other argument has been advanced. 10 As regards the quantum of sentence, it may be observed that the petitioner issued a cheque on 01.06.2005 and even till today nothing has been paid by him to the respondent and is still contesting the false plea which remained unsubstantiated before both the Courts below. The trial Court appears to have awarded lesser sentence than what he deserved. 11 Resultantly, finding no merit in the petition, the same is dismissed.