Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 955 (HP)

Sandeep Walia v. Sanjeev Dulta

2016-05-27

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. : This Revision Petition has been filed against judgment dated 29.10.2015 passed by the Court of learned Additional Sessions Judge-1, Shimla in Criminal Appeal No. 1-S/10 of 2015 vide which, the learned Appellate Court has upheld the judgment dated 13.05.2014 passed by learned Judicial Magistrate 1st Class, Jubbal, District Shimla in Case No. 1/3 of 2012, whereby the present petitioner has been convicted and sentenced for the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 2. The case of the complainant was that he and accused were good friends and had good relations with each other. Accused approached the complainant in January, 2011 and hired a Tipper from him on monthly rental charges of Rs.65,000/- per month. The truck was accordingly handed over by the complainant to accused on rent so agreed between him and the accused. In order to discharge his liability as was due towards the complainant, the accused issued advance post dated chaques, i.e., cheque Nos. 848691 dated 18.06.2011, 848690 dated 18.07.2011, 848692 dated 18.08.2011 and 848693 dated 18.09.2011, each amounting Rs.65,000/-, which were drawn upon the Punjab National Bank, Nahan Branch, District Sirmaur. When the said amount became due from the accused to the complainant as a result of the accused plying the Tipper which was hired by him, he presented the said cheques in his Bank, i.e. H.P. State Co-operative Bank, Jubbal Branch for the collection of the same. However, these cheques of the complainant were dishonoured due to insufficient funds. Thereafter, the complainant issued a legal notice to the accused dated 24.11.2011 on his last known address. Despite issuance of the said legal notice, the accused failed to make the payment of the dishonoured cheques. 3. After recording the preliminary evidence, the learned trial Court took cognizance of the offence and notices were issued to the accused. After procuring his attendance, notice of accusation was put to the accused under Section 138 of the Negotiable Instruments Act, 1881, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the complainant examined three witnesses and the accused did not examine any witness. 5. CW-1 Rishi Sharma, Clerk, Punjab National Bank, Nahan Branch deposed that the cheques in issue were presented for honouring in Punjab National Bank, Nahan Branch, which were dishonoured on account of insufficient funds. 4. In order to prove its case, the complainant examined three witnesses and the accused did not examine any witness. 5. CW-1 Rishi Sharma, Clerk, Punjab National Bank, Nahan Branch deposed that the cheques in issue were presented for honouring in Punjab National Bank, Nahan Branch, which were dishonoured on account of insufficient funds. Similarly, CW-2 Inder Singh Mokta, Assistant of H.P. Co-operative Bank, Jubbbal Branch has deposed that after dishonour of the cheques, subject matter of the present case, the said information was supplied to the complainant. Complainant entered the witness box as CW-3 and he reiterated his complaint. In his crossexamination, he stated that no payments were made to him by the accused in cash. He further stated that the accused had made three payments to him, i.e. an amount of Rs.65,000/-, Rs.58,000/- and Rs.65,000/- and all these three payments were made by way of cheques. He further stated in his cross-examination that his Tipper remained with the accused on rent for a period of eight months. He has also stated that an amount of Rs.2,60,000/- was due towards him from the accused and he had presented all the cheques on the asking of the accused. He denied the suggestion that he had misused the cheques or that he had received the payments. 6. Before proceeding further, it is relevant to refer to the statement of accused made under Section 313 of the Code of Criminal Procedure. A specific question was put to the accused that it has come in the evidence of the complainant that the complainant got issued a legal notice dated 24.11.2011 Ex. CW1/H upon the accused asking him to make the payments of the cheques amount and despite this, the payments were not made. His answer was “Yes, but total amount which was due was about Rs.90-95,000/-, which he was willing to pay at that time also”. In other words, the factum of issuance of legal notice to him by the complainant has not been denied by him nor he has mentioned that he had no knowledge of the said legal notice and the same was never served upon him. 7. In other words, the factum of issuance of legal notice to him by the complainant has not been denied by him nor he has mentioned that he had no knowledge of the said legal notice and the same was never served upon him. 7. On the basis of the material placed on record by the complainant before the learned trial Court, the said Court vide its judgment dated 13th May, 2014 came to the conclusion that on the basis of the evidence and in view of the response of accused during recording of his statement under Section 313 Cr. P.C., the accused had nothing substantial to deny the case of the complainant and accordingly, learned trial Court convicted the accused for commission of offence punishable under Section 138 of the Negotiable Instruments Act and imposed upon him the sentence of undergoing simple imprisonment for a period of six months for the commission of above offence and also directed him to pay compensation of Rs.3,50,000/-. 8. The said judgment was challenged by the accused by way of an appeal before the learned Appellate Court. The learned Appellate Court also concluded that the accused had failed to demonstrate on record that he had paid the amount which was due from him towards the complainant and only Rs.90-95,000/- remained to be paid. It further concluded that the accused had failed to convince that the cheques in question in fact were issued as security and that the same had been misused by the complainant. It further held that the complainant was able to prove that an amount of Rs.2,60,000/- was due from the accused towards him and keeping in view the fact that the cheques by the accused to liquidate the said amount were dishonoured on the ground of insufficient funds, the complainant had successfully proved its case and there was no illegality in the judgment of conviction and order of sentence passed by the learned trial Court. Feeling aggrieved by the said two judgments, the petitioner has filed the present revision petition. 9. Mr. Dinesh Bhanot, learned counsel appearing for the petitioner has argued that the judgments passed by the learned Courts below were perverse and not sustainable in the eyes of law. Feeling aggrieved by the said two judgments, the petitioner has filed the present revision petition. 9. Mr. Dinesh Bhanot, learned counsel appearing for the petitioner has argued that the judgments passed by the learned Courts below were perverse and not sustainable in the eyes of law. According to him, the complainant had miserably failed to prove on record that any amount was due to him from the accused in discharge of which, the cheques in question were issued in favour of the complainant by the accused. Mr. Bhanot argued that the cheques were lying as security with the complainant who has misused the same. He further argued that both the learned Courts below had erred in convicting the accused because they had failed to appreciate that in the present case, no legal notice, as is statutory requirement of the Negotiable Instruments Act was ever served upon the accused. Thus, according to him, this major infirmity in the case of the complainant had been ignored by both the Courts below and the judgments of conviction as well as sentence imposed upon the accused are thus liable to be set aside on this account alone. 10. Mr. Anil Chauhan, learned counsel for the respondent, on the other hand, has argued that there is no merit in the present writ petition and the same is liable to be dismissed out rightly. He has contended that both the Courts below have rightly come to the conclusion that the petitioner had committed the offence under Section 138 of the Negotiable Instruments Act. He further argued that the cheques which were issued by the accused to the complainant were issued in order to discharge his liability as the accused owed to the complainant the said amount, which was outstanding towards the rent of the Tipper which had been hired by the accused from the complainant. He has further argued that there is no misuse of any cheque as has been alleged by the accused nor the cheques were issued by the accused as security as alleged. He has further argued that there is no misuse of any cheque as has been alleged by the accused nor the cheques were issued by the accused as security as alleged. Further, he submitted that the complainant had issued the legal notice as is the requirement under the law and the factum of the legal notice having been issued in fact had been admitted by the accused in his statement under Section 313 of the Code of Criminal Procedure and, thus, there was no infirmity in the case of the complainant as has been alleged. Accordingly, he prayed for the dismissal of the present revision petition. 11. I have heard the learned counsel for the parties and also gone through the records of the case. 12. It is pertinent to mention that the accused has not been able to substantiate his defence by bringing on record any cogent material to the effect that the cheques in dispute were actually issued by him to the complainant as security. Similarly, he has not denied the factum of having hired the Tipper from the complainant on monthly rental charges of Rs.65,000/- per month. In fact, his case is that he has paid some amount to the complainant in this regard and further according to him, only an amount of Rs.90-95,000/- was outstanding. Thus, he has admitted that he owned money to the complainant in lieu of payment of rent of the Tipper which he had hired from the complainant. In this view of the matter, as the accused has not been able to substantiate that the said cheques were issued as security, then the only conclusion which can be prudently drawn is that the cheques were in fact issued in the discharge of the liability which the accused owed to the complainant, especially keeping in view the provisions of Section 139 of the Negotiable Instruments Act, 1881. Further, the stand of the accused that his cheques have been misused by the complainant is nullified from his own acts because the accused has not filed any case or complaint against present respondent to the effect that cheques issued as security by him to the complainant have been misused by him. 13. Learned counsel appearing for the petitioner was specifically put this question by this Court as to whether any complaint etc. 13. Learned counsel appearing for the petitioner was specifically put this question by this Court as to whether any complaint etc. had been lodged by the accused about the misuse of his cheques, to which the learned counsel for the petitioner fairly submitted that no such complaint etc. has been lodged. 14. From the above discussion, the only conclusion which can be drawn is that the cheques were issued by the accused in the discharge of his liability and when the same were presented by the complainant in the Bank, the same were dishonoured on account of insufficient funds. According to me, the findings which had been returned in this regard by both the Courts below are correct and based on appreciation of material placed on record by the complainant and there is no infirmity or perversity with the said findings returned by the learned Courts below. 15. Now coming to the issue of legal notice which had been issued by the complainant to the accused. The contention of the learned counsel for the petitioner is that the so called legal notice issued by the complainant was in fact never served upon the accused. According to him, it is demonstrable from the records itself that this notice was actually never served upon the accused. This most important aspect of the matter has not been appreciated by the learned Courts below. According to the learned counsel for the petitioner, non-service of the said notice upon the accused was fatal and accordingly, the present petition is liable to be allowed on this account alone by setting aside the order of conviction passed against the accused. 16. On the other hand, learned counsel for the respondent has submitted that the legal notice was duly sent by the complainant to the accused. Further, according to him, a perusal of relevant exhibit, i.e. Ex. CW-1/J will demonstrate that it is mentioned in the same against remarks dated 5th December, 2011 that “bar bar jane per nahi milta wapis”. This coupled with the earlier noting of dated 29.11.2011, which is to the effect that “bataya gaya hai ke prapatkarta kahi baher gaya hai” are conclusive proof of the fact that the accused was aware about the legal notice issued to him by the complainant and he was avoiding and evading its service intentionally. 17. This coupled with the earlier noting of dated 29.11.2011, which is to the effect that “bataya gaya hai ke prapatkarta kahi baher gaya hai” are conclusive proof of the fact that the accused was aware about the legal notice issued to him by the complainant and he was avoiding and evading its service intentionally. 17. In my considered view, in the present case, it is not as if no legal notice was issued by the complainant to the accused. The legal notice was duly issued and as per report on the receipt, the same could not be served upon him because the accused was not available despite the postal authorities attempting to serve him on more than one occasions. Incidentally, a perusal of the statement made by the accused under Section 313 Cr. P.C. will demonstrate that he has admitted the factum of legal notice having been issued by the complainant to him. Even otherwise, had his conduct been bonafide, then after the complaint was filed in the Court by the complainant under Section 138 of the Negotiable Instruments Act, 1881, nothing stopped the accused from depositing the amount in issue before the learned trial Court. Further, in my considered view, the legal position is that the drawer of the cheque makes himself liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881 in case he fails to make the payment within fifteen days of the receipt of the notice given to him by the drawee. Thus, the accrual of cause of action is in fact the failure on the part of the drawer of the cheque to pay the amount after receipt of the notice which gives rise to the cause of action to the complainant to file complaint within the statutory period prescribed under the Negotiable Instruments Act, 1881. However, there may be unscrupulous persons/drawers who may manage to get incorrect postal endorsements to defeat the claim of the drawee. The moot issue is as to whether in such circumstances a drawee will be without remedy or not. In my considered view, such like situation is duly covered by the principles incorporated in Section 27 of the General Clauses Act, which apply to a notice sent by post and it would be for the drawer to prove that it was not really served and that he was not responsible for such non-service. 18. In my considered view, such like situation is duly covered by the principles incorporated in Section 27 of the General Clauses Act, which apply to a notice sent by post and it would be for the drawer to prove that it was not really served and that he was not responsible for such non-service. 18. In V. Raja Kumari Vs. P. Subbarama Naidu and another (2004) 8 Supreme Court Cases 774 dealing with the case where notice cannot be served on account of the fact that door of the house of the drawer was found locked, the Hon’ble Apex Court has held that the principles incorporated in Section 27 of the General Clauses Act will apply in such like situation and it will be for the drawer to prove that he was not really served and he was not responsible for such service. 19. When we apply these principles to the facts of the present case, the only conclusion which can be drawn is that whereas the complainant has duly sent the legal notice to the accused, the service of the same was avoided and evaded by the accused. Further, the accused himself has admitted that the legal notice was issued to him which is evident from his statement made under Section 313 of the Code of Criminal Procedure. Therefore, in the peculiar facts of the present case, the legal notice is deemed to have been served upon the complainant, who admittedly had knowledge of the same and accordingly, this contention of the learned counsel for the petitioner is also without any merit. 20. Therefore, there is no infirmity with the judgments passed by the learned Courts below. It cannot be said that any material particular has been overlooked either by the learned trial Court or by the learned Appellate Court. There is no perversity in the findings arrived at by the learned Courts below. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon reappreciation of evidence. The High Court in revision cannot absence or error on a point of law, re-appreciate evidence and reverse a finding of law. 21. It is well settled law that the jurisdiction of High Court in revision is severely restricted and it cannot embark upon reappreciation of evidence. The High Court in revision cannot absence or error on a point of law, re-appreciate evidence and reverse a finding of law. 21. It has been further held by the Hon’ble Supreme Court that the object of the revisional jurisdiction was to confer power upon superior criminal Courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment which has resulted on the one hand, or on the other hand in some undeserved hardship to individuals. 22. Though the power of this Court is as wide as the power of the Appellate Court, yet it will not hear the revision as an appeal and reappraise the evidence and will interfere only in exceptional cases to prevent flagrant miscarriage of justice. Revisional jurisdiction cannot be exercised by this Court to substitute its own view with that of the learned lower Court on a question of fact. Unless the finding of the Court below is shown to be perverse or untenable in law or is based on irrelevant evidence or ignoring relevant evidence, it is impermissible to interfere with the order of the learned Court below in revisional jurisdiction. This Court has held in Jaswant Rai Vs. State of H.P., 2000 Cr. L.J. 1970 (1971) (HP) that though the revisional powers of the High Court are very wide, but are purely discretionary and should be exercised only in rare cases to prevent miscarriage of justice. 23. Thus it can be safely inferred that this Court has to exercise its revisional powers sparingly. Though, this court is not required to act as a Court of appeal, however, at the same time, it is the duty of the Court to correct manifest illegality resulting in gross miscarriage of justice. However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case. 24. As already held above, there is no perversity in the judgments passed by the learned Courts below. However, I do not find any manifest illegality with the judgments passed by the learned Courts below in the present case. 24. As already held above, there is no perversity in the judgments passed by the learned Courts below. These judgments have been passed by appreciating all the material on record and the judgments are neither cryptic nor it can be said that the conclusions arrived at are not borne out from the material placed on record. Thus, the revision sans merit and the same is dismissed.