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2012 DIGILAW 413 (PNJ)

Gursewak Singh v. Gupta Sales Corporation

2012-03-05

RAKESH KUMAR GARG

body2012
JUDGMENT Mr. Rakesh Kumar Garg, J.: (Oral) - Vide judgment dated 10.07.2009 passed by Sub Divisional Judicial Magistrate, Phul, the petitioner was convicted in a complaint filed under Section 138 of Negotiable Instruments Act, holding that the petitioner has committed offence under Section 138 of Negotiable Instruments Act, 1881 (herein referred as ‘Act’). 2. Accordingly, the petitioner was sentenced to undergo rigorous imprisonment for one year. The petitioner was also burdened with the amount of compensation at Rs.9,30,000/- to defray the amount of cheque and other expenses undertaken by the complainant to prosecute him. The petitioner was further burdened with cost of litigation of Rs.1000/-. The period of sentence already undergone during the trial of the case was ordered to be set off against the sentence awarded to the petitioner. 3. The petitioner preferred an appeal against the aforesaid judgment dated 10.07.2009. The complainant also filed a revision against the aforesaid judgment of the trial Court seeking enhancement of compensation and sentence awarded to the convict/accused/petitioner. The said appeal as well as revision petition were dismissed by the Additional Sessions Judge (Fast Track Court) Bathinda, vide impugned judgment dated 23.09.2011 holding that there was no infirmity in the judgment of the trial Court. 4. In the instant revision petition, noticing the contention of the counsel for the petitioner, this Court passed the following order on 20.10.2011:- “Conviction for commission of offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘The Act’) has been recorded by the trial Court and upheld by the lower Appellate Court while saying that there is a presumption under Section 139 of the Act to the effect that cheque had been issued in context of debt or liability. The petitioner-accused failed to rebut the said presumption. Learned counsel prays for time to place on record relevant material or statement of witnesses to show that the onus to rebut was duly delivered. Adjourned to 24.11.2011.” 5. Thereafter, the petitioner placed on record documents Annexures P-1 to P-3 (complaint, statement of Satpal and Gursewak Singh), vide Criminal Misc.No.59896 of 2011, vide order dated 08.11.2011. 6. Learned counsel prays for time to place on record relevant material or statement of witnesses to show that the onus to rebut was duly delivered. Adjourned to 24.11.2011.” 5. Thereafter, the petitioner placed on record documents Annexures P-1 to P-3 (complaint, statement of Satpal and Gursewak Singh), vide Criminal Misc.No.59896 of 2011, vide order dated 08.11.2011. 6. It is useful to refer to the the relevant paragraph of the impugned judgment which reads thus:- “This Court has bestowed its careful attention to the submission of counsel for the accused and learned counsel for the complainant and finds no force in the arguments advanced by the counsel for the accused/appellant. The cheque bearing No.0507562 dated 21.11.2008 for a sum of Rs.9,13,708/- which has been proved as Ex.CI was issued by the accused Gursewak Singh from his account No.01170072126, in favour of the complainant. The cheque Ex.CI dated 21.11.2008 was presented on the same day before the bankers of the accused, i.e within the validity period. It was dishonored, vide memo Ex.C2 due to insufficient funds, in the account of the accused on 21.11.2008. The notice was issued on 25.11.2008, vide notice Ex.C3 and the postal receipt Ex.C4 is on the record. Few days must have been taken in receipt of this notice by the accused. The complaint was filed on 23.12.2009 in Court thereafter within required period. The accused has denied that he was under any legal liability to pay any amount to the complainant, much less on account of loan taken by him. Section 139 of Act provide that it has to be presumed that the cheque had been issued for a debt or liability, unless the contrary is proved that the holder of a cheque received the cheque in whole or in part of any debt or other liability. This presumption is rebuttable, but this statutory presumption under Section 139 of the Act in this case has not been rebutted by the accused. The accused did not appear in witness box to utter few words in support of his denial that he was not liable to pay anything to the complainant or that he never issued the cheque in question to him, against any outstanding liability towards the complainant. The accused did not appear in witness box to utter few words in support of his denial that he was not liable to pay anything to the complainant or that he never issued the cheque in question to him, against any outstanding liability towards the complainant. Even otherwise, perusal of the cheque dated 11.1.2006 Ex.D2 reveals that complainant had issued this cheque of Rs.Six lac in favour of the accused and the accused had deposited the same through voucher Ex.D3 in his account and thereafter the accused had withdrawn this amount of Rs. Six lac from his account, being maintained with State Bank of India. Thus, by no stretch of imagination it can be said that no amount of Rs.Six lac was ever paid to the accused by the complainant by way of loan. Even otherwise, the submission of the accused is not accepted by this Court on this point, that the cheque in question Ex.CI was not legally recoverable loan. This Court finds support in this regard in case law laid down in K.N.Beena vs. Muniyappan reported in 2001(3) Civil Court Cases 621 (S.C.), wherein it has been held that there is presumption that cheque has been issued in discharge of debt or liability. Though presumption is rebuttable, but onus is on the accused to prove, by leading cogent evidence that there was no debt or liability. The accused cannot derive any benefit from case law Krishna Janardhan Bhat (supra), due to different fact situation obtaining herein. It is no plea of the accused that complainant was not in a situation to advance huge amount of Rs.Six lac as loan to the accused, as such the above authority would not be of any help to accused.” 7. A perusal of the aforesaid observations would show that the statutory presumption under Section 139 of the Act, has not been rebutted by the petitioner. Even the petitioner did not appear in the witness box to support his case and to state that he never issued the cheque in question against any outstanding liability towards the respondent. 8. From the documents Annexure P-1 to P-3, counsel for the petitioner was unable to show as to how presumption under Section 139 of the Act stood rebutted. No other material has been placed on record by the counsel for the petitioner before this Court. 9. 8. From the documents Annexure P-1 to P-3, counsel for the petitioner was unable to show as to how presumption under Section 139 of the Act stood rebutted. No other material has been placed on record by the counsel for the petitioner before this Court. 9. In fact, before this Court, counsel for the petitioner could not point out any error of law as well as facts in impugned judgments. 10. Not only this, on 25.11.2011, counsel for the petitioner has prayed for time to take instructions whether the petitioner will pay the cheque amount to the respondent-complainant with interest @ 10% or not. However, counsel for the petitioner has conceded that the petitioner is not ready to pay the amount as he is not in a position to pay. 11. In this view of the matter, I find no merit in this petition. 12. Dismissed. ------------------