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Himachal Pradesh High Court · body

2017 DIGILAW 1050 (HP)

Ajay Kaundal v. Santosh Kumar

2017-09-11

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant petition is directed against the judgment of the learned Sessions Judge Shimla, Himachal Pradesh, rendered in Cr. Appeal No. 8-S/10 of 2014 whereby he affirmed the judgment of 30.11.2013, rendered by the learned Judicial Magistrate 1st Class, Court No. (3), Shimla, District Shimla, H.P., in Case No. 621-3 of 2012, convicting and sentencing the accused/petitioner for his committing offences punishable under Section 138 of the Negotiable Instruments Act. 2. The facts of the case are that the petitioner/accused borrowed the amount of Rs. 1,70,000/- from the complainant/respondent herein for starting his new business. On the demand of complainant for said amount, the accused issued cheque bearing No. 009512 dated 10.5.2012 amounting to Rs. 1,70,000/- drawn on an account maintained by him with Central bank of India, Shimla in favour of the complainant. The complainant presented the said cheque for encashment in his bank but the same was dishonoured due to the reason “Account Closed” by the accused on 7.6.2012 for arranging the cheque amount within 15 days of the receipt of notice but the accused did not make the payment of cheque amount despite receipt of notice. Upon finding a prima facie case, notice of accusation under Section 138 of the Act has been put and contents of the same have been read over and explained to the accused on 28.5.2013. The accused did not plead guilty on the same and claimed trial. 3. Both the learned courts below have concurrently sentenced the accused/petitioner for his committing an offence punishable under Section 138 of the Negotiable Instruments Act, being aggrieved therefrom, the petitioner/convict has instituted the instant petition before this Court, for his making an effort to beget reversal of the impugned judgments. 4. In pursuance to issuance of cheque borne in Ext. CW1/A, it stood presented by its drawee before the Central Bank of India, however, on its being presented before the Central Bank of India, the latter was constrained to dishonor, it by assigning the reason of the account(s) of the petitioner/accused being closed. The aforesaid reason assigned by the bank concerned in its dishonouring negotiable instrument borne in Ext. CW1/A, is, comprised in Ext. CW1/B. Subsequent thereto, statutory notice borne in Ext. CW1/C, was issued, and evidently served upon the petitioner/convict. However, it did not beget a positive response from the petitioner/convict. The aforesaid reason assigned by the bank concerned in its dishonouring negotiable instrument borne in Ext. CW1/A, is, comprised in Ext. CW1/B. Subsequent thereto, statutory notice borne in Ext. CW1/C, was issued, and evidently served upon the petitioner/convict. However, it did not beget a positive response from the petitioner/convict. Consequently, the respondent/complainant was constrained to institute a complaint, cast, under the provisions of Section 138 of the Negotiable Instruments Act, before the learned Magistrate concerned. 5. The learned counsel for the petitioner/convict has contended that there no evident financial transaction inter-se the petitioner/ convict and the respondent/complainant, hence there was no occasion for the negotiable instrument borne in Ext. CW1/A being issued vis-à-vis the respondent/complainant. However, the aforesaid submission deserves rejection, as it stands anviled upon the factum, of the relevant cheque book wherein it occurred, being misplaced, whereupon obviously the relevant cheque leaf also borne therein, hence coming into the hands of the respondent/ complainant, whereafter its standing misused by him. However, the aforesaid contention, is entirely an afterthought, given its remaining espoused by the petitioner/convict only during the course of his counsel cross-examining the claimants’ witnesses and not prior thereto. The further reason for rejecting the aforesaid submission, is embodied in the trite factum of the cheque book wherein the dishonoured negotiable instrument also occurred, standing, as evident on a reading of the cross-examination of CWs, misplaced the year 2012, whereafter an FIR stood lodged before the police station concerned, yet, the effect of any FIR being lodged in respect of any cheque book being misplaced in the year 2012, is of no relevance in respect of loss of the cheque book wherein the dishonoured negotiable instrument also stood borne, given the loss of the relevant cheque book occurring remotely thereafter, more precisely, in the year 2012, in respect of loss whereof no FIR is lodged. Since the petitioner/convict, did not, in respect of the purported loss of the relevant cheque book embodying therein the dishonoured negotiable instrument, make in contemporanity thereof any apposite complaint in the year 2012, besides with the petitioner/convict, not, positively responding to the statutory notice comprised in Ext. CW1/C, despite evident service thereof being effected upon him nor his in his reply propagating all the aforesaid denial(s), thereupon his nowat espousal of Ext. CW1/A being misplaced besides its being misused by the complainant, is rendered construable to be an afterthought. 6. CW1/C, despite evident service thereof being effected upon him nor his in his reply propagating all the aforesaid denial(s), thereupon his nowat espousal of Ext. CW1/A being misplaced besides its being misused by the complainant, is rendered construable to be an afterthought. 6. In view of the above, I find no merit in the instant revision petition, which is accordingly dismissed. The judgments of both the courts below are affirmed. Pending application(s), if any, also stand disposed of.