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2011 DIGILAW 755 (UTT)

YASHPAL SINGH v. STATE OF UTTARAKHAND

2011-12-29

PRAFULLA C.PANT

body2011
JUDGMENT Hon’ble Prafulla C. Pant, J. 1. This revision is directed against the order dated 07.01.2004, passed by Additional Sessions Judge/1st Fast Track Court, Dehradun, in Criminal Appeal No. 16 of 2003, whereby said court has partly allowed the appeal but affirmed the conviction and sentence recorded by the trial court (Special Judicial Magistrate, Dehradun) in Criminal Complaint Case No. 854 of 2003, against the accused/revisionist. 2. Heard learned counsel for the parties and perused the lower court record. 3. Brief facts of the case are that respondent No.2 Gulab Singh filed a criminal complaint before the Magistrate with the allegations that on 29.11.1999, respondent No.2 Gulab Singh, in order to repay loan of Rs. 50,000/- payable by him to the complainant gave a Cheque Bearing No. 0093159 (Ex. A1). However, on presentation of said cheque with the bankers, the same was dishonored on 09.12.1999. Consequently, on 13.12.1999, notice was issued by the complainant to the respondent No.2 (drawer). However, he failed to make a payment within 15 days of receipt of the notice. Hence, the criminal complaint was filed in respect of offences punishable under Section 138 of Negotiable Instruments Act, 1881. 4. The accused Yashpal Singh (present revisionist) pleaded before the trial court that he had not taken loan from the complainant. However, he stated that there were commercial transactions between the complainant and the respondent No.2 (Gulab Singh). 5. The trial court after recording evidence and hearing the parties, found that the charge of offence punishable under Section 138 of Negotiable Instruments Act, 1881, is proved against the accused Yashpal Singh and convicted him accordingly and sentenced to six months imprisonment and directed to pay a fine of Rs. 5000/-. The trial court in addition to sentencing directed that the accused Yashpal Singh shall pay Rs. 50,000/- as compensation to the complainant. Aggrieved by said judgment and order dated 15.07.2003, passed in Criminal Complaint Case No. 854 of 2003, the convict (Yashpal Singh) filed a Criminal Appeal No. 16 of 2003, before the Sessions Judge, Dehradun. Said appeal, after hearing the parties was disposed of vide order dated 07.01.2004, passed by the appellate court, whereby the direction to pay compensation was set aside but the conviction and sentence recorded under Section 138 of Negotiable Instruments Act, 1881, was upheld. 6. Said appeal, after hearing the parties was disposed of vide order dated 07.01.2004, passed by the appellate court, whereby the direction to pay compensation was set aside but the conviction and sentence recorded under Section 138 of Negotiable Instruments Act, 1881, was upheld. 6. Learned counsel for the revisionist drew attention of this Court to the principle of law laid down in the case of Jugesh Sehgal Vs. Shamsher Singh Gogi (2009) 14 Supreme Court Cases Page No. 683 and it is argued that the lower court has erred in law, holding the revisionist guilty of charge of offence punishable under Section 138 of Negotiable Instruments Act, 1881, as neither there was enforceable debt, nor the cheque was dishonored for in sufficiency of funds. In this connection, it is contended that in the commercial transaction with the complainant, he has not shown that any amount was due from the side of accused. It is further pleaded that the cheque was dishonored on account of direction “stop payment” to the bankers and not due to the in-sufficiency of funds. 7. However, in the case of Rangappa Vs. Sri Mohan (2010) 11 Supreme Court Cases Page No. 441, the larger Bench of the Supreme Court has held that there shall be presumption as to the legally enforceable debt, unless the defense proves otherwise. In the same case, it has been further held by the Apex Court that where the cheque is dishonored on account of “stop payment”, Section 138 of Negotiable Instruments Act, 1881, would be attracted. In view of the latest case law given by the larger Bench of the Apex Court, this court finds no force in the arguments advanced on behalf of the revisionist. 8. On careful scrutiny of the record, this Court finds that the appellate court has erred in law in setting aside the order passed by the trial court, to pay compensation to the complainant. The plea that the complainant had no license of money lending was the plea taken in the defense, and the burden to prove said fact was on the party, who pleaded it i.e. the accused. Merely for a single transaction of loan, it cannot be presumed on mere allegation that the complainant was doing money-lending business. The plea that the complainant had no license of money lending was the plea taken in the defense, and the burden to prove said fact was on the party, who pleaded it i.e. the accused. Merely for a single transaction of loan, it cannot be presumed on mere allegation that the complainant was doing money-lending business. The accused had pleaded that it was a commercial transaction between the accused and the complainant, as such, whether it was a loan transaction or commercial liability in either case, it will be presumed that amount was payable by the party, who admittedly issued the cheque in favour of the complainant and the complainant was entitled to compensation as awarded by the trial court. The impugned order to that extent is liable to be set aside. 9. Lastly, on behalf of the revisionist, it is pleaded that the revisionist is 75 years old person and his sentence of imprisonment may be set aside. 10. In the above circumstances, for the reasons as discussed above, this revision is disposed of with the direction that the conviction of the revisionist Yashpal Singh, recorded under Section 138 of Negotiable Instruments Act, 1881, shall remain affirmed. However, the compensation of Rs. 50,000/- directed to be paid to the complainant shall stand restored, to that extent and the order of the appellate court is set aside. If the revisionist pays said amount of Rs. 50,000/- to the complainant within one month from today, the sentence of six months imprisonment awarded by the courts below, shall stand set aside, and the revisionist shall be required to pay fine of Rs. 5,000/- only. If the amount of compensation is not paid within a period of one month from today to the complainant, or not deposited in his favour in the trial court, and further if the fine is not deposited before the trial court within the said period, the period of sentence of imprisonment awarded by the trial court and affirmed by the appellate court shall have to be served out by the revisionist in addition to the payment of fine and payment of compensation. Lower court record be sent back.