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2017 DIGILAW 351 (HP)

Het Ram v. The C. d. Cooperative Credit Society

2017-04-12

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. —By way of this revision petition, the petitioner has challenged the judgment passed by the Court of learned Additional Sessions Judge (II), Mandi, District Mandi in Cr. Appeal No. 12/2010 dated 1.5.2015, vide which learned appellate court while dismissing the appeal filed by the present petitioner has upheld the judgment passed by the Court of learned Chief Judicial Magistrate, Mandi in Criminal Case No. 128-II/2007 dated 4.1.2010, whereby learned trial court had convicted the accused for commission of offence punishable under Section 138 of the Negotiable Instruments Act (in short "N.I. Act") and sentenced him to undergo simple imprisonment for a period of six months and also to pay cheque amount to the complainant as compensation. 2. Brief facts necessary for adjudication of the present case are that respondent/complainant (hereinafter referred to as "complainant-Society") filed a complaint under Section 138 of the N.I. Act before learned trial court on the ground that the complainant-Society was dealing in banking and had Branches at various places in District Mandi and that an amount of Rs. 46,000/- was advanced to the accused by the complainant-Society which the accused had agreed to repay by way of monthly instalments of Rs. 1200/- + interest. As per the complainant-Society, accused had issued cheque Ext. CW1/B towards discharge of his liability to the complainant-Society dated 15.9.2007 drawn on Bank of Baroda, Mandi Branch for an amount of Rs. 46,000/-. Complainant-Society had deposited the said cheque in their bank i.e. UCO Bank on 18.9.2007 and thereafter on clearing from Bank of Baroda, the said cheque was returned back to the complainant-Society on account of "insufficient Funds" in the account of the accused. Further as per the complainant-Society, thereafter legal notice was served upon the accused dated 16.10.2007 which was returned back undelivered to the sender vide endorsement that "addressee was not available". It was the case of the complainant-Society that the accused had intentionally issued the aforesaid cheque with an ulterior motive to deceive the complainant-Society knowing-fully well that the cheque would not be honoured on its presentation. On these bases, complainant-Society filed complaint for punishing the accused under the provisions of N.I. Act. 3. It was the case of the complainant-Society that the accused had intentionally issued the aforesaid cheque with an ulterior motive to deceive the complainant-Society knowing-fully well that the cheque would not be honoured on its presentation. On these bases, complainant-Society filed complaint for punishing the accused under the provisions of N.I. Act. 3. As a prima face case was found against the accused, notice of accusation was accordingly put to him for commission of offence punishable under Section 138 of the N.I. Act to which he pleaded not guilty and claimed trial. 4. In order to prove its case, complainant examined its Branch Manager CW-1 Kiran Prakash as well as CW2 Ramesh Kumar Postal Assistant Head Office. Complainant-Society examined CW3 Smt. Krishna Devi Cash Clerk of the banker of the accused to demonstrate that the cheque drawn upon by the accused was dishonoured on account of insufficient funds. 5. In his statement recorded under Section 313 Cr.P.C. accused admitted that he had raised loan from the complainant-Society and he also admitted the factum of having issued the cheque in favour of the complainant-Society to discharge his duty. However, when he entered the witness box as DW-1 he stated that the said cheque was got executed from him by the complainant-Society under pressure. 6. Learned trial court on the basis of evidence placed on record by the complainant-Society held that it stood proved on record that the accused had raised loan from the complainant-Society and in order to discharge his liability he (accused) had issued cheque Ext.CW1/B to the bank which cheque was dishonoured on account of insufficient funds in the account of the accused. Learned trial court further held that it stood proved from the record that thereafter a legal demand notice dated 16.10.2007 was issued to the accused and records demonstrated that complete and permanent address of the accused was mentioned on the registered envelope and postman visited the house of the accused from 17 to 20 October, 2007 and 22 to 24th October, 2007 for the purposes of delivery of the same but the accused was not available there and therefore the postman on 24.10.2007 made an endorsement to this effect. Learned trial court further held that there was no evidence from the side of the accused that he was not available at his house on account of illness job or any other reason and he had not stated anything in the cross-examination of CW-1 Kiran Prakash or CW2, Ramesh Kumar i.e. the Postal Assistant. On these bases it was held by learned trial court that accused could be taken to be having constructive knowledge of demand notice on 24.10.2007. Learned trial court thus held that even thereafter accused had failed to make good the payment of the complainant-Society and that evidence on record further demonstrated that the accused had committed an offence punishable under Section 138 of the N.I. Act. On these bases learned trial court convicted the accused. 7. In appeal, learned appellate court uphold the findings so returned by the learned trial court. Learned appellate court held that accused in his statement under Section 313 Cr.P.C. had admitted the fact of his having raised loan but he stated that he had repaid the same. Learned appellate Court also held that the accused had admitted that he was having a bank account in Bank of Baroda, Mandi Branch and had also obtained cheque book. Learned appellate court further held accused had issued cheque Ext. CW1/B in favour of the complainant-Society, though he denied that the cheque in issue was dishonoured for want of ''sufficient funds''. Learned appellate further held that however contrary to the statement made by accused under Section 313 Cr.P.C when the accused entered the witness box as DW1 he had taken a ''U'' turn and stated that the complainant-Society had in fact lodged a police report and he was summoned in the Police Station wherein the police officials asked him to see the police lockup. It was in these circumstances, he issued cheque Ext. CW1/B, under the threat of police, in favour of the complainant-Society. Learned appellate court held that no explanation was given by the accused as to why said matter was not reported to the police or to the appropriate authority. Learned appellate court further held that the factum of the threats etc. was not disclosed by the accused in his statement under Section 313 Cr.P.C. while on the other hand he admitted having issued cheque Ext. CW1/B in favour of the complainant-Society. Learned appellate court further held that the factum of the threats etc. was not disclosed by the accused in his statement under Section 313 Cr.P.C. while on the other hand he admitted having issued cheque Ext. CW1/B in favour of the complainant-Society. Learned appellate court thus held that in view of the conflicting stand taken by accused, he was not able to rebut the presumption arising in favour of the complainant-Society under Section 139 of the N.I. Act. Learned appellate court also held that the case of the prosecution was otherwise duly proved form the testimony of complainant witnesses and it was on these bases learned appellate court uphold the findings returned by the learned trial court. 8. Feeling aggrieved, the petitioner has filed the present revision petition. 9. I have heard learned counsel for the parties and have also gone through the records of the case as well as judgments passed by both the learned courts below. 10. It is a matter of record that the factum of issuance of the cheque has not been denied by the petitioner though his case is that the said cheque was not issued by him in discharge of liability he owed to the complainant, but the same was issued under coercion after police threats were given to him by the complainant-Society. This contention of the petitioner in my considered view is without any merit. As has been rightly held by both the learned courts below the factum of loan having been raised by the accused from the complainant-Society is not disputed by him. Further the factum of issuance of the cheque to the complainant-Society has also not been issued by him. As it was his allegation that the said cheque was issued by him under coercion then the onus was upon the accused to have had probablised his defence which he has miserably failed to do so. On the other hand the complainant-Society has proved its case by way of testimonies of CW1, CW2 and CW3 all of whom have categorically deposed in the learned trial court about the issuance of cheque by the accused to the complainant-Society towards discharge of his liability which cheque when presented to the bank in issue was returned back as dishonoured on account of insufficient funds. Issuance of legal notice upon the accused by the complainant-Society has also been duly proved by the complainant-Society. Issuance of legal notice upon the accused by the complainant-Society has also been duly proved by the complainant-Society. In this background, when the accused has failed to probablise his defence that the cheque in fact was issued by him under coercion from the complainant-Society, it cannot be said that the conclusion arrived at by both the learned courts below to the effect that the accused was guilty of having committed offence punishable under Section 138 of the N.I. Act are perverse. These findings are not only duly borne out from the records of the case but are also substantiated from the material that was placed on record by the complainant-Society which could not be rebutted by the accused in defence. 11. Therefore, in view of the above discussion, as there is no merit in the present revision petition, the same is accordingly dismissed.