Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 417 (PNJ)

Darshan Lal v. State of Punjab

2012-03-05

RAKESH KUMAR GARG

body2012
JUDGMENT Mr. Rakesh Kumar Garg, J (Oral):- Vide judgment dated 14.09.2010 passed by Sub Divisional Judicial Magistrate, Phagwara, 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 convicted under Section 138 of Negotiable Instruments Act, 1881 and was ordered to undergo simple imprisonment for a period of one year and to pay fine of Rs.5,000/- and in default of payment of fine, the petitioner was ordered to undergo further simple imprisonment for one month. 3. The petitioner preferred an appeal against the aforesaid judgment dated 14.09.2010 which was dismissed by the Sessions Judge, Kapurthala, vide judgment dated 16.02.2012 holding that the trial Court rightly convicted and sentenced the accused/petitioner. 4. In the instant revision petition, the challenge has been laid to the aforesaid judgments of the Courts below on the ground that the presumption under Section 139 of the Act, in favour of the holder of the cheque (i.e.respondent) stood rebutted as the petitioner has proved on record that there is no legal liability of the petitioner to pay the cheque amount and in fact, the cheque in question was issued as a security for the loan taken by the Resham Lal. 5. It is further case of the petitioner that under Section 326 of the Criminal Procedure Code leaves no manner of doubt that when a case is tried as a summary case, a Magistrate, who succeeds the Magistrate, who has recorded the part or whole of the evidence, cannot act on the evidence so recorded by his Predecessor and in summary proceedings the Successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his Predecessor has left it and the impugned judgments are liable to be set aside, in view of the interpretation of the Hon’ble Supreme Court in case of Nitinbhai Saevatilal Shah & another Vs. Manubhai Manjibhai Panchal and another, [2011(6) Law Herald (SC) 4143] : 2011(4) Civil Court Cases 001 (SC). 6. Heard learned counsel for the petitioner and perused the impugned judgments. 7. Manubhai Manjibhai Panchal and another, [2011(6) Law Herald (SC) 4143] : 2011(4) Civil Court Cases 001 (SC). 6. Heard learned counsel for the petitioner and perused the impugned judgments. 7. It is useful to refer to the relevant part of the impugned judgment of the Sessions Judge, Kapurthala which reads thus:- “I have considered the arguments addressed by Counsel for both the parties and find that the trial court has rightly come to the conclusion that a loan of Rs.6,25,000/- has been given by the complainant to the accused, but, the accused has failed to repay the said amount. Then the accused issued cheque in favour of the complainant for the said amount. When the said cheque was produced before the bank and the same was dishonoured, then a notice was served upon the accused, but even then, he has failed to make the payment and thus, the present complaint was filed. The complainant has proved on record, the pronote and receipt dated 05.11.2007 Ex.CI and Ex.C2 respectively. So, an amount of Rs.6,25,000/- has been given to the accused by the complainant. Since the accused had failed to give back the said loan amount and thus, he issued a cheque for the said amount in favour of the complainant dated 15.02.2008 which is Ex.C3. Then, the said cheque Ex.C3 was presented before the bank, but , information was given to the complainant vide memo dated 16.0.2008 Ex.C4 that the cheque is dishonoured. Then, the complainant has issued a notice Ex.C5 to the accused to make the payment, but he has failed to make the payment and then, the present complaint was filed. There is no reason to disbelieve the pronote and receipt and the cheque in question, since, all these documents are signed by the accused and rather his signatures on the cheque Ex.C3 are admitted by him. Two contradictory pleas have been taken by the accused in his statement under Section 313 Cr.P.C. The accused has taken the plea that a loan of Rs. 98,000/- was taken on behalf of one Resham Lal and the accused has stood as guarantor for him and during that course, he has taken a blank cheque duly signed by him in favour of the complainant. 98,000/- was taken on behalf of one Resham Lal and the accused has stood as guarantor for him and during that course, he has taken a blank cheque duly signed by him in favour of the complainant. However, it is argued by the defence counsel that a loan of only Rs.98,000/- was taken by the accused and he never took a loan of Rs.6,25,000/- from the complainant. The finance books are not required to be produced by the complainant, since pronote and receipt EX.CI and Ex.C2 with respect to the loan of Rs.6,25,000/- have been proved on record. The testimony of the complainant clearly proves that the parties are known to each other and loan of Rs.6,25,000/- was given by the complainant to the accused. Since the signatures of the accused are admitted on the cheque Ex.C3, and thus, the presumption is drawn under Section 139 of the Act that a loan of amount of Rs.6,25,000/- has been given by the complainant to the accused and the same has been received him. The authority titled as Nitinbhai Saevatilal Shah & another Vs. Manubhai Manjibhai Panchal and another (supra) cited by the defence counsel is not applicable to the facts and circumstances of the present case. In the said authority, the summary procedure was adopted by the Magistrate for trial of the complainant under Section 138 of the Act. However, while trying the present complaint, in hand, no summary procedure has been adopted. The Magistrate has adopted the procedure applicable to the trial of a summoned case. Had the Magistrate adopted summary procedure, then, the said authority would have applicable to the facts of the present case. The trial Court has rightly convicted and sentenced the accused vide its judgment dated 14.09.2010, under appeal. So, the present appeal is without any merit and the same is dismissed. Appellant be taken into custody. Appeal fine be consigned to record room, while record of lower Court be returned forthwith.” 8. The argument raised on behalf of counsel for the petitioner is liable to be rejected simply on the ground that Reshal Lal son of Najr Ram while appearing as DW-1 in his statement has falsified the stand taken by the petitioner as he has categorically stated that the loan amount was taken by the petitioner Darshan Singh from the complainant Gurmail Singh. 9. 9. From the aforesaid statement of the witness who was produced by the petitioner himself, the defence of the petitioner is completely shattered. There is nothing on record on the basis of which it can be held that the presumption under Section 139 of the Negotiable Instruments Act 1881, which is in favour of the drawer of the cheque has been rebutted. In fact, execution of the cheque in question was never in dispute and the only defence taken by the petitioner is that no legal debt was payable by him as the cheque in question was issued as security. The aforesaid stand taken by the petitioner has been falsified as discussed above. 10. The second contention of the petitioner on the basis of the judgment of the Hon’ble Supreme Court in case of Nitinbhai Saevatilal Shah & another Vs. Manubhai Manjibhai Panchal and another (supra) is also liable to be rejected simply on the ground that in the instant case, a finding has been recorded while deciding the present case that no summary procedure was adopted and the Magistrate had adopted the procedure applicable to the summon case. Thus, bar of Section 326 as interpreted by the Hon’ble Supreme Court would not apply. 11. Thus, I find no merit in the instant revision petition. 12. Dismissed. ------------------------