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2013 DIGILAW 66 (PNJ)

Ram Narain Batra v. Surender Kumar

2013-01-24

NARESH KUMAR SANGHI

body2013
Naresh Kumar Sanghi, J.:— 1. Prayer in CRM-A-625-MA-2012 is for grant of special leave to appeal, while in CRM-43982-2012 is for condonation of delay of 195 days in filing the application for grant of special leave to appeal. 2. Precisely, the facts of the case are that the applicant-complainant and the respondent-accused were friends. In the month of February, 2005, at the request of the respondent- accused, a sum of ‘72,500/- was given by the applicant- complainant as a loan. On 1.3.2005, the respondent-accused in discharge of his pre-existing liability, issued Cheque No. 126916, dated 1.3.2005, drawn on State Bank of India, Sirsa Branch, Sirsa, with the assurance that the same would be encashed on presentation. However, the said cheque bounced on account of insufficient funds in the account of the respondent-accused. After completing the formalities of issuance of notice etc., the applicant-complainant filed a complaint before the learned Area Judicial Magistrate. After preliminary inquiry, the summoning order was passed and in consequence thereof the respondent- accused appeared before the learned Trial Court. The notice of accusation was served on him to which he pleaded not guilty and claimed trial. 3. In order to prove the allegations levelled in the complaint, the applicant-complainant has examined Jagdish Parsad, Senior Record Keeper-cum-Cashier as PW-1; Joginder Singh, Clerk, PSB, Sirsa, as PW-2; and he (applicant-complainant) himself appeared as PW-3. The applicant-complainant also relied upon the documentary evidence i.e. the statement of account of State Bank of India, Sirsa (Ex. PA), SS Card (Ex. PB), statement of account of PSB, Sirsa (Ex. P). 4. After conclusion of the evidence of the applicant-complainant, the respondent-accused was confronted with the incriminating material came out against him in the evidence of the applicant-complainant. In his statement under Section 313, Cr.P.C., the respondent-accused refuted all the allegations levelled against him by the applicant-complainant. He claimed innocence and pleaded false implication. However, in defence, no evidence was led by him. 5. After hearing the counsel for the parties, the learned Judicial Magistrate Ist Class, Sirsa, acquitted the respondent-accused, vide judgment dated 14.11.2011, by observing as under:- “11. It is the case of the complainant that he was having very good relations with the accused and on the request made by the accused in the month of February, 2005, an amount of Rs. It is the case of the complainant that he was having very good relations with the accused and on the request made by the accused in the month of February, 2005, an amount of Rs. 72,500/- was given to him as a loan which was to be returned without any interest on demand of the complainant. On 1.3.2005 when the said amount was demanded by the complainant, the accused in discharge of his pre- existing liability issued a cheque bearing No. 126916, dated 1.3.2005 of State Bank of India, Sirsa Branch but the said cheque when presented by the complainant with his banker Punjab and Sind Bank, Sirsa Branch, Sirsa in his account bearing No.20456 the same was returned as unpaid with the remarks “Insufficient Funds” vide memo dated 6.5.2005. Legal notice was also served upon the accused by the complainant but he did not make the payment. Whereas, it is the case of the accused that no cheque was ever issued by him in favour of the complainant and the complainant has also failed to prove the complaint, beyond reasonable doubt. 12. After careful perusal of the cheque dated 1.3.2005, it is observed that the same has not been exhibited by the complainant in his evidence. The contention of learned counsel for complainant that there is no need to exhibit the said cheque because at the time of recording of preliminary evidence of complainant the same was duly exhibited and on the basis of which the accused was summoned by this court after finding a prima-facie case against him, cannot be accepted because in order to prove this fact that the accused in order to discharge his liability executed the said cheque in favour of the complainant, the said cheque must be duly exhibited as per Indian Evidence Act. Moreover, as per the case of the complainant when the amount was not returned by the accused, a legal notice was also issued to the accused through his counsel Shri Onkar Batra, Advocate on 19.5.2005 by registered post bringing to the knowledge of the accused about the dishonour of cheque on account of reasons of “Insufficient funds” as given by the banker of the complainant. 13. As per Sections 67 and 45 of Indian Evidence Act, “ordinarily, execution of a document is established by proving the handwriting and signature on the document under Section 67 of the Evidence Act. 13. As per Sections 67 and 45 of Indian Evidence Act, “ordinarily, execution of a document is established by proving the handwriting and signature on the document under Section 67 of the Evidence Act. It is primarily proved by examining the person who executed or created the document by writing and signing on the same and when such examination is not possible, execution can be proved by examining a person who saw the document being written and signed. In the absence of direct evidence relating to the writing and signature in the document, execution may be proved by examining a person who is qualified and competent to express his opinion, as to the handwriting and signature, by acquaintance or otherwise.” 14. In the present case, the said advocate Shri Onkar Batra who, as per the case of complainant issued the legal notice to the accused has not been examined to prove this fact that a legal notice was in fact issued to the accused regarding dishonour of the cheque and regarding payment of the amount within 15 days as per the mandate of Section 138 of Negotiable Instruments Act. Moreover, the written memo has also not been proved by examining any official of the bank and mere producing of statement of account cannot prove that any cheque was presented in the bank. It is also held by Hon’ble Kerla High Court in case titled as C. Santhi Versus Mary Sherly 2011 (4) RCR 94 that mere production of a cheque or marking the same as an exhibit in a case, will not prove that the cheque is drawn by accused. Moreover, it is the admitted case of complainant that he has given the amount to so many persons without having any money lending licence. It is held by Bombay High Court in case of Smt. Nanda w/o Dharam Nandanwar Vs. Nandkishor s/o Talakram Thaokar 2010 (2) Civil Court Cases 288 that claim by money lender against borrower without a valid and operative money lending license covering period of transaction is unenforceable claim under Section 138 of the Act and complaint is bound to be dismissed. 15. For the reason foregoing, this court has no hesitation to dismiss the said complaint and the same stands dismissed. Accused is acquitted of the notice served upon him. File be consigned to record room.” 6. 15. For the reason foregoing, this court has no hesitation to dismiss the said complaint and the same stands dismissed. Accused is acquitted of the notice served upon him. File be consigned to record room.” 6. Learned counsel for the applicant-complainant could not assail the grounds of acquittal recorded by the learned Trial Court. After careful examination of the impugned judgment, it transpires that the respondent-accused has rightly been acquitted. The applicant-complainant has miserably failed to substantiate that the impugned cheque was issued by the respondent-accused. The applicant-complainant even failed to prove that the legal notice was issued to the respondent-accused regarding dishonour of the cheque and demanding payment of the amount within 15 days, as enumerated in Section 138 of the Negotiable Instruments Act. The applicant-complainant also failed to prove the bank memo etc. by calling any person from the bank as a witness. 7. Finding no illegality, perversity or infirmity in the impugned judgment passed by the learned Trial Court, the CRM A-625-MA-2012, for grant of special leave to appeal, is hereby dismissed. 8. Similarly, finding no force in CRM-43982-2012, for condonation of delay of 195 days, is also dismissed.