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2016 DIGILAW 1201 (RAJ)

Laxmi Narain S/o Vishnu Joshi v. Anil Kumar S/o Amba Lal Paliwal

2016-08-22

GOVERDHAN BARDHAR

body2016
JUDGMENT : Goverdhan Bardhar, J. Instant revision petition has been filed against the judgment dated 19.01.2016 passed by learned Sessions Judge, Rajsamand in Criminal Appeal No. 77/2013 whereby, he dismissed the appeal filed by the petitioner and affirmed the judgment dated 07.06.2013 passed by the learned Judicial Magistrate (First Class), Rajsamand by which the petitioner has been convicted under Section 138 of Negotiable Instrument Act & 357 IPC and sentenced him to two years simple imprisonment and imposed fine of Rs. 10,00,000/- and in default of payment of fine, to undergo six months S.I. 2. As per brief facts of the case, the complainant respondent filed a complaint against the petitioner that he had advanced a loan of Rs. 5,00,000/- to the petitioner and the petitioner gave him cheque No. 601241 on dated 01.09.2007 towards the loan amount. It was alleged in the complaint that when the amount was not paid, the complainant presented the cheque to the bank on 12.11.2007 and same was dishonoured with the endorsement 'returned due to insufficient funds'. Despite the service of the statutory notice, the payment was not made to the complainant respondent. The learned trial court took cognizance of the offence under Section 138 of the Act against the petitioner and vide judgment dated 07.6.2013, the trial court held the petitioner guilty for the offence under section 138 of the Act, and convicted and sentenced him, as mentioned above. The petitioner preferred an appeal against the order of conviction before the appellate court, however, vide judgment dated 19.01.2016, the appeal filed by the petitioner was dismissed. Hence, the present revision petition. 3. Learned counsel for the petitioner argued that the mandatory provisions of the N.I act have not been complied with and there is nothing on record to show that cheque has been given in lieu of borrowed money. It is further argued that complainant stated that he has shown the borrowed amount of Rs. 5,00,000/- in the balance sheet but he could not produce the same. It is further argued that complainant stated that he has shown the borrowed amount of Rs. 5,00,000/- in the balance sheet but he could not produce the same. Further it was the specific case of the petitioner that seven-eight cheques had fallen in between the way from Kankroli to Udaipur and the complainant has misused the lost/missing cheque and the burden of proof that the cheque was issued towards borrowed amount was upon the complainant but the learned trial court has committed an error in arriving at the finding that petitioner has given the cheque against legal liability. Learned counsel for the petitioner further argued that the date on which the loan was advanced has not been mentioned in the complaint by the complainant and therefore, the complainant has miserably failed to prove his case that the cheque was issued towards discharge of lawful debt. He placed reliance on the judgment of Hon'ble Apex Court in the case of Vijay v. Laxman & anr. Reported in 2013 Cr.L.R (SC) 277. 4. On the other hand, learned counsel for the respondent has supported the judgments of both the courts below and submits that the courts below have passed the impugned judgment after appreciating the material evidence on record and the concurrent finding arrived at by the courts below need not be interfered with in this revision petition. 5. Heard and considered the arguments advanced at the bar and perused the order impugned and the record. 6. In this case, the specific defence of the petitioner is that some cheques were misplaced/lost by the petitioner on the way from Kankroli to udaipur and they were misused by the complainant by submitting them to the Bank for encasement and the complainant has failed to establish that the cheque was issued for discharge of any lawful debt. It is pertinent to note that despite opportunity by the learned trial court, the petitioner accused neither presented himself as a defence witness nor he produced any evidence in his defence. On the other hand, the complainant Anil Kumar AW/1 has specifically stated in his cross-examination that he had advanced the loan of Rs. 5,00,000/- to the petitioner in 2007 and in lieu thereof, the cheque was given to him on dated 01.09.2007. On the other hand, the complainant Anil Kumar AW/1 has specifically stated in his cross-examination that he had advanced the loan of Rs. 5,00,000/- to the petitioner in 2007 and in lieu thereof, the cheque was given to him on dated 01.09.2007. If the cheques were misplaced/lost, the petitioner ought to have instructed the Bank for stopping the payment but no such step was taken by the petitioner nor any FIR has been lodged by the petitioner. Thus, the contention of the petitioner that the lost cheque was misused by the complainant is not acceptable. 7. Learned counsel for the petitioner-revisionist argued that the courts below have wrongly arrived at the finding by making a presumption under Section 118 and 138 of N.I. Act. It is the specific case of the complainant that cheque No. 601241 amounting to Rs. 5,00,000/- was given by the accused and the said cheque was presented in the Bank on 12.11.2007. Exhibit P/2 is the cheque returning memo wherein it has been mentioned that cheque is returned due to insufficient funds. The complainant has produced himself as AW/1 and in cross-examination, he stated that in 2007 he gave a loan of Rs. 5,00,000/- to the accused Laxmi Lal for purchasing new vehicle. In this matter, the petitioner has not denied his signatures on the cheque in question. It is also admitted fact that the complainant is known to him and despite receiving legal notice, no FIR was lodged regarding the missing/lost cheques nor he produced copy of any publication in newspaper about missing cheque. There is nothing on record to believe that the cheque in question was one of the missing cheques. Thus, the complainant has reasonably discharged the burden that the payment was towards a lawful debt and it is not open for the petitioner accused to set up a defence that although the cheque had been signed by him, which had bounced, the same would not constitute an offence. Hon'ble Supreme Court in the case of Vijay (supra) has held as under :- "11. However, the Negotiable Instruments Act incorporates two presumptions in this regard: one containing in Section 118 of the Act and other in Section 139 thereof. Section 118 (a) reads as under: 118. Presumption as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made- 1. However, the Negotiable Instruments Act incorporates two presumptions in this regard: one containing in Section 118 of the Act and other in Section 139 thereof. Section 118 (a) reads as under: 118. Presumption as to negotiable instruments.-Until the contrary is proved, the following presumptions shall be made- 1. of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; Section 139 of the Act reads as under: 139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. While dealing with the aforesaid two presumptions, learned Judges of this Court in the matter of P. Venugopal v. Madan P. Sarathi, (2009) 1 SCC 492 had been pleased to hold that Under Sections 139, 118 (a) and 138 of the N.I. Act existence of debt or other liabilities has to be proved in the first instance by the complainant but thereafter the burden of proving to the contrary shifts to the accused. Thus, the plea that the instrument/cheque had been obtained from its lawful owner or from any person in lawful custody thereof by means of an offence or fraud or had been obtained from the maker or acceptor thereof by means of an offence or fraud or for unlawful consideration, the burden of disproving that the holder is a holder in due course lies upon him. Hence, this Court observed therein, that indisputably, the initial burden was on the complainant but the presumption raised in favour of the holder of the cheque must be kept confined to the matters covered thereby. Thereafter, the presumption raised does not extend to the extent that the cheque was not issued for the discharge of any debt or liability which is not required to be proved by the complainant as this is essentially a question of fact and it is the defence which has to prove that the cheque was not issued towards discharge of a lawful debt." 8. In the case of Vijay (supra) the cheque was presented by the complainant on the same date when it was issued and the complaint was also lodged without specifying on which date the amount of loan was advanced which created doubt on the complainant's case and the conviction and sentence of the accused was held to be not sustainable whereas, in present case, it is the specific plea of the complainant that in 2007 he gave a loan of Rs. 5,00,000/- to the accused Laxmi Lal and a cheque No. 601241 dated 01.09.2007 was given by the accused petitioner which was presented in the Bank on 12.11.2007, therefore, it is not in dispute that the cheque in question was presented in the Bank after 70 days from the date of its issuance. Moreover, in this case, in reply to the legal notice Ex/8, the petitioner accused alleged that complainant misused the missing cheques but in defence no evidence in this regard has been produced by the accused petitioner. Thus, on the facts the case of Vijay (Supra) is distinguishable from the present case and does not help the petitioner. In this case, the complainant has reasonably discharged his initial burden to the effect that the cheque in question was issued towards the lawful debt by the lawful owner and it is not open for the petitioner accused to set up a defence that although the cheque had been signed by him which had bounced, the same would not constitute an offence. In the complaint, the substance of allegations made by the complainant fulfils the requirement of provisions of Negotiable Instruments Act. Both the courts below have held that the complainant has discharged initial burden and there is concurrent finding of both the courts below. 9. In view of above discussion, the findings arrived by both the courts below does not call for any interference. Hence, the revision petition being bereft of any force is hereby dismissed.