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2015 DIGILAW 1441 (HP)

Varen Jalta v. Bija Ram

2015-10-08

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. This revision petition is directed against the judgment dated 30.4.2014 passed by learned Additional Sessions Judge-I, Shimla in Cr. Appeal No. 117-S/10 of 2012 whereby he affirmed the judgment of sentence dated 26.9.2012/15.10.2012 passed by learned Judicial Magistrate Ist Class, Court No. III, Shimla convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act') on account of dishonour of cheque No. 107791 dated 21.4.2010 to undergo simple imprisonment for six months and to pay compensation of Rs. 2,24,000/- to the complainant. 2. The facts giving rise to the present revision are that the complainant Bija Ram filed complaint against the petitioner for offence under Section 138 of the Act on the ground that the complainant is an agriculturist and is having landed property and has ancestral house in the village. It is averred that the petitioner approached the complainant with the request for plot and had assured to get partition of the joint property of the complainant and as such, GPA was executed in respect of landed property. It is alleged that by taking undue advantage of ignorance and innocence of the complainant, the petitioner started selling the property of complainant without getting partition and demarcation. It is further alleged that the complainant came to know about selling of his property by the petitioner without partition and demarcation and that he had received huge amount of sale consideration from the purchaser without intimating the complainant. It is alleged that the complainant made personal inquiry in this regard and was compelled to revoke the GPA which was executed in favour of the petitioner. It is alleged that when complainant came to know about misdeed of the petitioner then he in the month of March, 2008 approached the complainant who then requested him not to proceed against him in the police and admitted that he has sold joint property of complainant and when complainant asked for the payment of the same then in lieu of payment the accused issued cheque bearing No. 107791 dated 21.4.2010 amounting to Rs. 2,00,000/- in favour of the complainant in order to discharge his liability, payable at PNB, Sanjauli, Shimla. 2,00,000/- in favour of the complainant in order to discharge his liability, payable at PNB, Sanjauli, Shimla. It is further alleged that the complainant sent said cheque to his banker through banker of petitioner for encashment but the same was dishonoured for insufficient funds and in this regard bank issued memo. Thereafter, the complainant served a legal demand notice through registered post dated 5.8.2010 upon the petitioner informing him about dishonouring of his cheque but despite receipt of notice, the petitioner neither replied the same nor made the payment. When the petitioner failed to make payment despite receipt of notice, then the complainant was compelled to file the complaint against the petitioner. 3. After receipt of the complaint, preliminary evidence of the complainant was recorded and when after the perusal of the same and finding sufficient material on record then process against the petitioner was issued for offence under Section 138 of the Act. The presence of the petitioner was procured. After procuring the presence of the petitioner and when a prima facie case for the commission of offence under Section 138 of the Act was made out against the petitioner, notice of accusation for said offence was framed and put to the petitioner to which he pleaded not guilty and claimed to be tried. 4. The complainant in order to prove his case against the petitioner examined himself as CW-1. After the closure of the complainant's evidence, statement of petitioner under Section 313 Cr.P.C. was recorded wherein the petitioner denied the case of the complainant and stated that he is innocent. The petitioner also examined three witnesses in his defence including himself. 5. The learned trial Court after hearing the submissions made by the learned counsel for the parties and perusing the entire record carefully, convicted and sentenced the petitioner and the appeal filed against the order of conviction and sentence before the learned lower Appellate Court was dismissed vide impugned judgment dated 30.4.2014 and it is against this judgment of conviction and sentence that the criminal revision has been preferred. 6. Mr. Dalip K. Sharma, learned counsel for the petitioner has strenuously argued that the learned Courts below have completely overlooked and ignored the fact that there was no valid notice which stood issued to the petitioner and being a condition precedent he could not have been convicted. 6. Mr. Dalip K. Sharma, learned counsel for the petitioner has strenuously argued that the learned Courts below have completely overlooked and ignored the fact that there was no valid notice which stood issued to the petitioner and being a condition precedent he could not have been convicted. It is further argued that the cheque in question had forcibly taken by the respondent and to this effect a complaint was also filed by the petitioner but despite this the learned Courts below have ignored this fact. It is further argued that the cheques in question had not been issued for discharge of any legal liability and therefore, no offence under the Negotiable Instruments Act had been made out. While on the other hand, the respondents have supported the judgments passed concurrently by the learned Courts below. I have heard learned counsel for the parties and have gone through the records of the case carefully. 7. Section 138 of the Negotiable Instruments Act, 1881 reads thus: "138. While on the other hand, the respondents have supported the judgments passed concurrently by the learned Courts below. I have heard learned counsel for the parties and have gone through the records of the case carefully. 7. Section 138 of the Negotiable Instruments Act, 1881 reads thus: "138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless-- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice." 8. In order to prove his case, the complainant Bija Ram appeared as CW-1 and has proved cheque Ex. CW-1/A having been drawn by the accused/petitioner in his favour. Ex. CW1/B and CW1/C are the dishonour memos issued by the banker, Ex. CW-1/D is the demand notice while Ex. In order to prove his case, the complainant Bija Ram appeared as CW-1 and has proved cheque Ex. CW-1/A having been drawn by the accused/petitioner in his favour. Ex. CW1/B and CW1/C are the dishonour memos issued by the banker, Ex. CW-1/D is the demand notice while Ex. CW-1/F is the postal receipt regarding delivery of the notice to the accused by the complainant. 9. The learned Courts below have concurrently found that Ex. CW-1/A was presented for encashment within its validity period, however, the same was returned as unpaid due to insufficiency of funds in the account of the accused vide memo Ex. CW-1/C dated 28.4.2010 whereby the statutory demand notice Ex. CW-1/D was sent by the complainant to the accused by registered post on 19.8.2010 which too had been sent within the statutory period. The notice was duly delivered and postal receipt to this effect is Ex. CW-1/F. Though, acknowledgement card regarding receipt of notice has not been proved on record but then the accused has admitted in his statement under Section 313 Cr.P.C. that notice Ex. CW-1/D was sent by the complainant to him by registered post. Therefore, the service of notice has been duly proved but still the accused failed to respond to the same or make payment. 10. That apart, CW-1 in his statement has categorically stated that the accused had asked him to sell his land situated at Cemetery Sanjauli and had even obtained GPA from him. It is also stated that the accused assured that as and when plots would be sold by him he would make the payment of the same to the complainant. It is further stated that on the basis of GPA the accused sold 3-4 plots but made no payment of the same to him. He learnt from the villagers that the accused had not only sold his land but even the purchaser had taken possession of the same, but no payment was made to the complainant. It was on this account that the accused had issued two cheques in his favour which were dishonoured leading to the issuance of legal notice and ultimately to the filing of the complaint under Section 138 of the Act. 11. The complainant was cross-examined and stated that GPA was registered at Tehsil Office. It was on this account that the accused had issued two cheques in his favour which were dishonoured leading to the issuance of legal notice and ultimately to the filing of the complaint under Section 138 of the Act. 11. The complainant was cross-examined and stated that GPA was registered at Tehsil Office. It was admitted that the cheque was given to him by the accused in the month of April, 2008, whereas the GPA was executed on 28.2.2009. He specifically denied the suggestion put to him to the effect that he had by force and by putting the accused under threat, obtained these cheques. Though, he admitted that he had executed agreement Ex. PX with his full understanding. He also admitted that in presence of police he had entered into compromise Ex. D-2 with the petitioner. The correctness of GPA Ex. D-1 was also admitted. He also did not deny that the petitioner had sold three plots qua his share in the property and had no knowledge that the accused intimated his banker to stop the payment. 12. As against this, LHC Kamlesh appeared as D.W.-1 and deposed regarding the copy of rapat Ex. D.W.-1/A being correct as per record. In cross-examination, he specifically stated that no FIR was lodged on the basis of rapat Ex. D.W.-1/A. 13. An official from the Punjab National Bank, Sanjauli Ms. Chander Kala appeared as D.W.-2 and deposed that the requisitioned record was not available with the bank. However, she had brought invoice Ex. D.W.-2/A regarding stopping of the payment. In cross-examination, she feigned ignorance and deposed that she could not say whether the police rapat had been annexed with the request for stopping of the payment or not. 14. The petitioner appeared as D.W.-3 and deposed that his friend had purchased plot from the complainant and due to that reason the complainant was known to him. It was stated that the complainant had also approached him for the sale of his land and then the petitioner alongwith his brother had executed GPA in his favour. It was also stated that there was a understanding between him, complainant and his brother that he would sell plots for consideration of Rs. 20,00,000/- and make the payment in instalments of Rs. 4,00,000/- each. GPA was executed in the month of February, 2009 and agreement to sell on 12.4.2010. It was also stated that there was a understanding between him, complainant and his brother that he would sell plots for consideration of Rs. 20,00,000/- and make the payment in instalments of Rs. 4,00,000/- each. GPA was executed in the month of February, 2009 and agreement to sell on 12.4.2010. He specifically stated that three plots were sold by him in favour of Ashok Shalta, Chet Ram Sharma and Dilbag Singh and Kamla Rani. He thereafter stated that he had issued cheque No. 017791 dated 21.4.2010 for a sum of Rs. 2,00,000/- in favour of the complainant and his brother not towards the discharge of any debt but as security. He further stated that he had issued another cheque in the sum of Rs. 2,00,000/- as security. He further stated that the complainant and his brother were required to encash the cheques only after the sale of the plot by him. The cheques were issued in advance as per agreement dated 12.4.2010. He further went to state that in month of July, 2010 he was called by the complainant to village Malyana where the complainant forcibly took four cheques from him which led him to lodge rapat Ex. D.W.-1/A with the police and further led to the accused to instruct his banker to stop the payment. He further states that it was only at Malyana that the petitioner learnt that GPA had been revoked by the complainant and his brother. He denied having received any legal notice about dishonour of cheques from the complainant side. His specific case was that the complainant had misused his cheques. 15. But then in his cross-examination, he clearly admitted that the address in the body of the complaint as also in the legal notice was correct. He further admitted that no action was taken on the basis of rapat which he had lodged with the police vide Ex. D.W.-1/A. He denied the suggestion that though he had sold the plots worth Rs. 20,00,000/- but had not made the total payment to the complainant. He also denied having issued the cheque in favour of the complainant after execution of the sale deeds. This is the entire evidence led by both the parties. 16. D.W.-1/A. He denied the suggestion that though he had sold the plots worth Rs. 20,00,000/- but had not made the total payment to the complainant. He also denied having issued the cheque in favour of the complainant after execution of the sale deeds. This is the entire evidence led by both the parties. 16. From what has been set-out above, it is absolutely clear that the complainant through oral and documentary evidence has been able to prove the essential ingredients of Section 138 of the Act and, therefore, burden shifts to the accused to rebut the presumption as envisaged under Section 139 of the Act. That apart, once the petitioner admits his signature on the cheque, then presumption is that he had issued the same in discharge of his liability and for consideration. Moreover, no suggestion at the time of cross-examination of the complainant was put to him on behalf of the accused that cheque in question alongwith other cheques were issued as advance security, the only suggestion put was that these four cheques had been obtained from the accused under threat and by use of force. This plea of security was taken for the first time by the accused while appearing as D.W.-3. 17. As already observed earlier, the receipt of notice was though initially denied by the petitioner but then in his statement under Section 313 Cr.P.C. he has specifically admitted the receipt of legal demand notice sent by the complainant to him. It is evident from the aforesaid discussion that the petitioner after having acknowledged the receipt of a notice cannot question the same. He has further failed to prove on record that the cheque in question had been forcibly taken by the respondent. No doubt, a complaint vide rapat Ex. D.W.-1/A was filed with the police but then this rapat did not culminate into FIR and no further investigation whatsoever has been carried out on the basis of such rapat. The petitioner further has also not been able to prove that the cheques issued by him were either issued as security or had not been issued for the discharge of any legal liability. 18. The conviction under Section 138 of the Negotiable Instruments Act has been concurrently entered against the revision petitioner based on the oral and documentary evidence. The petitioner further has also not been able to prove that the cheques issued by him were either issued as security or had not been issued for the discharge of any legal liability. 18. The conviction under Section 138 of the Negotiable Instruments Act has been concurrently entered against the revision petitioner based on the oral and documentary evidence. Therefore, in order to interfere with the concurrent conviction, in exercise of revisional jurisdiction, the petitioner was required to establish that the Courts below have appreciated the evidence in an utter perverse manner or that the conclusion arrived at by the learned Courts below are totally against the weight of the evidence, which he has miserably failed to establish. 19. In view of the aforesaid discussion, I have no hesitation to hold that the petitioner has failed to make out any ground whatsoever to compel this Court to interfere with the conviction in exercise of its revisional jurisdiction. 20. Accordingly, I find no reason to interfere with the conviction entered against the revision petitioner under Section 138 of the Negotiable Instruments Act concurrently by the learned Courts below. Hence, the revision petition is dismissed and resultantly the conviction is confirmed. Pending application, if any, is also disposed of.