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Himachal Pradesh High Court · body

2016 DIGILAW 970 (HP)

Mohinder Singh v. Sunil Thakur

2016-05-30

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. Present Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure against the judgment dated 5.4.2008, passed by learned Additional Sessions Judge, Sirmaur, District Nahan, in Criminal Appeal No. 7-N/10 of 2004, affirming the judgment dated 6.9.2004 passed by learned Sub Divisional Magistrate, Rajgarh in criminal Complaint No. 49/3 of 2002, whereby the present petitioner has been convicted under Section 138 of the Negotiable Instruments Act and has been sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 3000/- and in default of payment of fine to undergo simple imprisonment for three months. 2. Briefly stated facts of the case are that the complainant( hereinafter referred to as “respondent”) filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ”Act’) against the petitioner ( hereinafter referred to as “accused”) specifically averring therein that the accused borrowed a sum of Rs.80,000/- from him on loan basis in the month of August, 2000 with a promise to return the said amount within a period of two years along with 12% interest per annum i.e. up to August, 2002. However, there is no document on record that the aforesaid arrangement was ever reduced into writing by the parties to the lis. Despite several requests accused failed to pay/return the money, as agreed upon by him. On 2.8.2002, accused issued a cheque bearing No.177423 amounting to Rs.80,000/- in favour of the complainant drawn at UCO Bank Rajgarh. Accordingly, complainant presented the said cheque for collection before UCO Bank, Rajgarh on 4.10.2002 and the same was returned to the complainant by the aforesaid bank with the endorsement of “insufficient funds”. The complainant immediately on receipt of the memo Ex.CW1/B issued by the bank sent a registered notice to the accused on 10.10.2002, which appears to be received by the accused. However, despite service of the notice upon the accused, he did not bother to make the payment to the complainant and, as such, was compelled to file a complaint under Section 138 of the Act in the appropriate Court of law. 3. However, despite service of the notice upon the accused, he did not bother to make the payment to the complainant and, as such, was compelled to file a complaint under Section 138 of the Act in the appropriate Court of law. 3. The Court of learned Sub Divisional Magistrate, Rajgarh on the basis of the material available on record issued summons to accused vide order dated 7.1.2003 with the direction to the accused to put in appearance, the notice of accusation was put to the accused, as envisaged under Section 138 of the Act, to which accused pleaded not guilty and claimed trial. 4. Complainant with a view to prove its case examined two witnesses, whereas statement of accused under Section 313 Cr.P.C was also recorded, whereby he denied the allegations of the complainant with regard to taking of loan from him and issuance of cheque in his favour, however, tool the defence that he had issued cheque in question in favour of one Rajesh Sharma, R/O Village Pabiana and the cheque was blank at that time. Though, time was taken by the accused to lead evidence but record reveals that no evidence has been led by him in his defence, rather record suggests that after closure of the defence evidence accused, obtained order from the Court of learned Additional Sessions Judge, Sirmaur, whereby one opportunity of leading evidence in defence was afforded to him. But fact remains that no evidence was led on record by the accused. 5. Learned trial Court after appreciating the evidence available on record held the accused guilty under Section 138 of the Act and vide impugned judgment dated 6.9.2004 convicted and sentenced the accused, as per the description given hereinabove. 6. Feeling aggrieved and dissatisfied with the impugned Judgment passed by learned trial Court, present petitioner filed an appeal under Section 374 of the Code of Criminal Procedure against the impugned judgment dated 6.9.2004, passed by the learned trial Court. However, the Court of learned Additional Sessions Judge, Sirmaur after appreciating the evidence be it ocular or documentary available on record dismissed the appeal preferred by the present petitioner and up held the impugned judgment passed by learned trial Court. Hence, the present petition. 7. Mr. However, the Court of learned Additional Sessions Judge, Sirmaur after appreciating the evidence be it ocular or documentary available on record dismissed the appeal preferred by the present petitioner and up held the impugned judgment passed by learned trial Court. Hence, the present petition. 7. Mr. N.K.Tomar, learned counsel representing the petitioner vehemently argued that the judgments passed by both the Courts below are not sustainable as the same are not based upon correct appreciation of the evidence available on record. He contended that bare perusal of the judgments passed by both the Courts below suggest that the evidence available on record have been not appreciated by the Courts below in its right perspective while holding the present petitioner guilty for having committed an offence punishable under Section 138 of the Act. It is also contended that both the Courts below have fallen in grave error while not acknowledging the fact that there was material alternation as far as cheque Ex.CW1/A is concerned. Hence, there was complete violation of Section 87 of the Act and, as such, judgments passed by both the Courts below are deserve to be quashed and set-aside. 8. Mr. Tomar, learned counsel forcibly contended that both the Courts below have very conveniently ignored the statement made by the accused under Section 313 Cr.P.C, wherein he has stated that the cheque Ex.CW1/A was never issued to the complainant by him, rather same was issued in the name of Rajesh Sharma in blank form. 9. He also strenuously argued that both the Courts below have not taken into consideration the defence put up by the accused with regard to non registration of the complainant under HP Registration of Money Lenders Act, 1976 because its stand proved on record that the complainant indulged in the business of money lending and, as such, liability fastened upon the petitioner is not legally enforceable for the purpose of Section 138 of the Act. He prayed that the judgment passed by both the Courts below may be quashed and set-aside and the accused may be acquitted for the charge as framed against him under Section 138 of the Act. 10. Per contra, Mr. C.S.Thakur, learned counsel for the respondent supported the judgments passed by both the Courts below. He prayed that the judgment passed by both the Courts below may be quashed and set-aside and the accused may be acquitted for the charge as framed against him under Section 138 of the Act. 10. Per contra, Mr. C.S.Thakur, learned counsel for the respondent supported the judgments passed by both the Courts below. He contended that no inference, whatsoever, of this Court is warranted in the present facts and circumstances of the case, where it stands proved beyond reasonable doubt that the cheque in question was issued by the accused and despite several opportunities having been afforded to him he failed to make the payment in terms of the cheque. It is also contended on behalf of the respondent that there is no evidence available on record to suggest that the respondent ever indulged in the business of money lending and, as such, there was no requirement for the respondent to get himself registered under HP Registration of Money Lenders Act, 1976. He also disputed the contention put forth by the petitioner that the cheque in question was issued in the name of one Rajesh Kumar in blank form. During arguments, he invited the attention of the Court to the evidence be it ocular or documentary on record to demonstrate that no specific denial whatsoever with regard to issuance of cheque as well as liability of accused to pay the amount in question has come on record on behalf of the accused, rather there is material evidence available on record which prima-facie suggest that despite several opportunities, petitioner failed to return the amount took by him in the shape of loan from the respondent and, as such, he was compelled to file a complaint under Section 138 of the Act. Mr. Thakur, learned counsel, contended that even during pendency of the present petition his client was ready and willing to compromise the matter but despite the matter being listed in the Lok Adalat, accused did not come forward to settle the matter. It is noticed here that even before deciding the matter at hand opportunity was granted to the accused on 24th May, 2016 to make the payment, if any, but counsel representing the petitioner stated that despite best effort accused could not located. 11. I have heard the learned counsel representing the parties and have carefully gone through the record made available. 12. 11. I have heard the learned counsel representing the parties and have carefully gone through the record made available. 12. True, it is that while exercising the power under Section 397 of Criminal Procedure Code, this Court has very limited power to re-appreciate the evidence led by both the parties 13. As far as scope of power of this Court while exercising revisionary jurisdiction under Section 397 is concerned, the Hon’ ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality or sentence or order. The relevant para of the judgment is reproduced as under:- “8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to mete out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, the High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order.” 14. Conjoint reading of the evidence be it ocular or documentary available on record leaves no doubt in the mind of the Court that the cheque Ex. CW1/A was issued by the accused in favour of the respondent for the discharge of debt/liability but as emerges from the record that the cheque issued by the accused was returned by the bank with the endorsement having “insufficient funds”. CW1/A was issued by the accused in favour of the respondent for the discharge of debt/liability but as emerges from the record that the cheque issued by the accused was returned by the bank with the endorsement having “insufficient funds”. Complainant Sunil Thakur while appearing in the witness box as CW-1 categorically stated that the accused had borrowed a sum of Rs.80,000/- from him in the year, 2000, which was supposed to be returned on or before August, 2002 but when demand was made in August, 2002, accused issued a cheque Ex.CW1/A, dated 2.8.2002 in favour of the complainant. The said cheque was presented for payment to the bank on 4.10.2002 and the same was returned by bank vide memo Ex.CW1/B, dated 4.10.2002 with the endorsement that there are no “sufficient funds” in the account of the accused. It has also come in the statement of complainant that immediately after the receipt of memo Ex.CW1/B from the Bank, he got legal notice Ex.CW1/C, dated 10.10.2002 issued to the accused under registered seal cover vide postal receipt Ex.CW1/D. The factum with regard to receipt of the same by the accused was duly proved in the Court vide acknowledgment receipt Ex.CW-1/E. Since accused despite there being sufficient opportunities failed to make the payment in terms of the cheque in question, respondent was compelled to file a complaint under Section 138 of the Act. 15. Careful perusal of the cross-examination of the complainant, who appeared as CW-1 suggest that the accused was unable to extract anything contrary from the complainant as stated in his examination-in-chief, rather suggestion put forth by the accused to the complainant that the cheque in question was issued to some businessmen but not to complainant was specifically denied by the complainant. Suggestion with regard to non taking of any loan from the complainant was also denied by the complainant in his crossexamination. Though, factum with regard to non-registration of any deed in writing at the time of giving loan was admitted by the complainant in the cross-examination. 16. CW-2,Rajinder Sood, Head Cashier in UCO Bank also stated that as per the record maintained by the Bank cheque bearing No. 177423 amounting to Rs.80,000/- was presented in the bank for payment by the complainant, which was ultimately dishonoured on the account of “insufficient fund” in the account of the accused. 16. CW-2,Rajinder Sood, Head Cashier in UCO Bank also stated that as per the record maintained by the Bank cheque bearing No. 177423 amounting to Rs.80,000/- was presented in the bank for payment by the complainant, which was ultimately dishonoured on the account of “insufficient fund” in the account of the accused. He also proved on record memo Ex.PW2/A, whereby cheque was returned to the complainant. Careful perusal of the statement given by CW-2 clearly corroborates the statement given by CW-1 as far as depositing of cheque and returning the same by the bank is concerned. In the cross-examination of CW-2, nothing contrary has come forward from where it can be inferred that CW-2 has not deposed correctly in the Court. 17. Careful reading of the statements given by CW-1 as well as CW-2 clearly suggest that cheque Ex.CW1/A, dated 2.8.20002 was actually issued by accused in favour of the complainant/respondent for discharge of his liability. It also stands proved that the cheque was presented in the bank, which was ultimately returned with the endorsement of having “insufficient fund”. In the cross-examination of CW-1, no suggestion worth the name was put to the complainant (CW-1) regarding issuance of legal notice Ex.CW1/C as well as nonreceipt of the same by the accused. Hence, it can be safely concluded that the complainant was able to prove beyond reasonable doubt that after issuance of cheque as well as dishonour of the same, he took all necessary steps as envisaged under Section 138 of the Act to prove its case beyond reasonable doubt. Though, accused in his statement under Section 313 Cr.P.C, nowhere denied the factum of issuance of cheque Ex.CW1/A but took the defence that the cheque was issued in favour of one Rajesh Sharma in blank form. But perusal of the record nowhere suggest that anything evidence was led on record by the accused to substantiate his aforesaid defence and admittedly aforesaid Rajesh Sharma was not examined by the accused to substantiate his plea qua issuance of cheque in favour of his name. But perusal of the record nowhere suggest that anything evidence was led on record by the accused to substantiate his aforesaid defence and admittedly aforesaid Rajesh Sharma was not examined by the accused to substantiate his plea qua issuance of cheque in favour of his name. Hence, in the absence of Rajesh Sharma, aforesaid plea raised by the accused could not be accepted at all, rather careful perusal of the cross-examination of CW-1, which has been discussed in detailed hereinabove, nowhere suggest that any suggestion with regard to signatures of the accused on the cheque denying the signature of the accused was ever put to the accused, which omission carefully establish that the cheque in question was signed by the accused and none-else. Suggestion with regard to issuance of the cheque in favour of one Rajesh Sharma was specifically denied in the cross-examination by the complainant. Though, perusal of the impugned judgments suggest that during arguments specific question with regard to non-receipt of notice was taken by the accused but there is ample evidence on record, which proves that legal notice Ex.CW1/C was duly received by the accused. Moreover, in the cross-examination of the complainant no suggestion with regard to non-receipt of legal notice was put to him, meaning thereby factum with regard to issuance of legal notice in favour of the accused stands duly proved on record. 18. It has specifically come in the statement of CW-2, Head Cashier of UCO Bank, Rajgarh that cheque Ex.CW1/A in question was presented in the Bank for encashment, which was dishonoured and returned to the complainant. It has specifically come in the statement that the accused had an account in the bank bearing No. 8760 on 4.10.2002. To prove the aforesaid contention of the witness, abstract of cheque returning register Ex.CW2/A was also produced in the Court. Moreover, careful perusal of the crossexamination of CW-2, nowhere suggest that any suggestion that the accused was not having any account in the bank was put to him, meaning thereby that the defence taken by the accused that he was not having any bank account in UCO Bank, Rajgarh cannot be accepted at all on the face of the evidence available on record, which clearly suggest that accused was having an account in the bank and actually he had issued cheque in question in favour of the complainant. 19. 19. Though, the statement with regard to violation of section 87 of the Act has been specifically dealt with by the Court below but in view of the arguments having been made by Mr. Tomar, learned counsel representing the petitioner, this Court itself perused the cheque EX.CW1/A to ascertain the correctness of the arguments having been made by learned counsel representing the accused in this regard. Perusal of the cheque Ex.CW1/A, nowhere suggest that it has been altered in any manner, it appears that on the cheque in question instead of year 2000 word 19 was written to describe the year but since cheque was issued in the year, 2002, accused himself after cutting word 19 very clearly written 2.8.2002.There is no alteration, if any, as far as date is concerned. It has been very clearly written 2.8.2002 by cutting the word 19. It appears that cheque book/ cheque leaf was old, where “19” was written to describe the year, Hence, the aforesaid arguments having been made on behalf of the accused deserve to be rejected being baseless. 20. Another submission having been made by Mr. Tomar, learned counsel with regard to non- acknowledgment of the fact with regard to non- registration of the complainant under HP Registration of Money Lenders Act, 1976 is concerned, this Court has not been able to find any material on record suggestive of the fact that any evidence worth the name was led on behalf of the accused to prove that the complainant had lent money to the accused being money lender as defined under HP Registration of Money Lenders Act, rather it stands proved on record beyond reasonable doubt that money was borrowed by accused in the year, 2000, which he failed to pay within stipulated period and, as such, after dishonour of the cheque, complainant was compelled to approach the Court of law. Since no specific evidence, whatsoever was led by the accused with regard to non-registration of complainant, if any, under HP Registration of Money Lenders Act, 1976, plea with regard to the same cannot be accepted at all at this stage. Moreover, no suggestion worth the name with regard to registration of the complainant under HP Registration of Money Lenders Act, 1976 was ever put to the complainant in his crossexamination. 21. Moreover, no suggestion worth the name with regard to registration of the complainant under HP Registration of Money Lenders Act, 1976 was ever put to the complainant in his crossexamination. 21. Another contention with regard to cause of action put forth by the counsel representing the petitioner also deserve to be rejected because it stands proved on record that immediately after dishonouring of the cheque in question Ex.CW1/A, legal notice Ex.CW1/C was got issued within stipulated period, which was duly received by the accused. Careful perusal of the sequence of events occurred between the date of issuance of cheque till issuance of legal notice leaves no doubt in the mind of the Court that the complaint was presented well within time on the basis of cause of action, which accrued to the complainant after receipt of the memo Ex.CW1/B by the bank disclosing the factum with regard to “insufficient funds” in the account of the accused. 22. In totality of facts and circumstances of the case, this Court has no hesitation to conclude that the complainant has successfully proved its case beyond reasonable doubt and all the basic ingredients of section 138 of the Act has been complied with by the complainant to prove the guilt of the accused, who had admittedly issued the cheque Ex.CW1/A in favour of the complainant. 23. In view of the above, judgments passed by both the Courts below are upheld. Order dated 8.5.2008, passed by this Court, whereby sentence imposed by the court below was suspended, is hereby vacated and the petitioner accused is directed to surrender himself before the learned trial court forth with to serve the sentence as awarded by the learned trial Court. Petition stands disposed of along with pending applications, if any.