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2017 DIGILAW 400 (HP)

Hira Nand Sharma v. Madan Lal Thakur

2017-04-24

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J.( Oral) - Instant criminal revision petition filed under Section 397 read with Section 401 of the Cr. PC, is directed against the judgment dated 2.8.2014, passed by the learned Additional Sessions judge (II), Shimla, HP, in Criminal Appeal No. 33-S/10 of 2014/12, affirming the judgment of conviction dated 30.8.2012 and order dated 06.9.2012, passed by the learned Judicial Magistrate, Ist Class, Court No. 3, Shimla, H.P. in case No. 981-3 of 2011, whereby the petitioner has been sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 6,90,000/- to the complainant under section 138 of the Negotiable Instruments Act "in short the Act" 2. Briefly stated facts as emerge from the record are that the respondent (complainant) lodged a complaint in the Court of Judicial Whether reporters of the Local papers are allowed to see the judgment? Magistrate, 1st class, Court No. III, Shimla, H.P., against the petitioner-accused under Section 138 of the Act, stating therein that during the month of September, 2009, the petitioner-accused, asked for Rs. 8 lac from him for construction of house and marriage of his son. Since the accused was family friend, the complainant advanced Rs. 1 lac through cheque and Rs. 50,000/- in cash on 7.9.2009, Rs. 4 lac through cheque and Rs. 1 lac in cash on 4.11.2009 and Rs. 1,50,000/- in cash on 20.11.2009 to the accused. Petitioner accused with a view to discharge his aforesaid liability, issued three cheques amounting to Rs. 8 lacs including cheque No. 4996044 dated 5.9.2011 amounting to Rs. 1,50,000/- and cheque No. 4996043 dated 05.09.2011 amounting to Rs. 5 lac, drawn at the HP State Co-operative Bank Ltd, Totu, Shimla HP, in favour of the complainant. However, fact remains that on presentation, the above numbered cheques were dis-honored on account of insufficient funds in the account of the petitioner accused. On receipt of memo dated 6.9.2011, the complainant got legal notice issued upon the petitioner accused advising him to make the payment good within 15 days. Since the petitioner failed to make the payment in terms of the aforesaid notice, he was compelled to initiate proceedings before the competent Court of law under Section 138 of the Act. 3. On receipt of memo dated 6.9.2011, the complainant got legal notice issued upon the petitioner accused advising him to make the payment good within 15 days. Since the petitioner failed to make the payment in terms of the aforesaid notice, he was compelled to initiate proceedings before the competent Court of law under Section 138 of the Act. 3. The learned trial Court on the basis of material adduced on record held the petitioner accused guilty of having committed offence under Section 138 of the Act and accordingly, sentenced him as per the description given herein above. 4. Being aggrieved and dis-satisfied with the judgment of conviction recorded by the learned trial Court, the petitioner-accused preferred an appeal under Section 374 Cr.PC before the learned Additional Sessions Judge (II), Shimla, District Shimla, H.P. However, the fact remains that the learned Additional Sessions Judge, vide judgment dated 2.8.2014, dismissed the appeal preferred by the petitioner accused, as a result of which the impugned judgment dated 30.8.2010 and order dated 6.9.2012, came to be upheld. In the aforesaid background, present petitioner approached this Court by way of instant proceedings seeking his acquittal after setting aside the judgments of conviction recorded by the courts below. 5. Mr. V.S. Rathore, Advocate representing the petitioner-accused vehemently argued that the judgments of conviction recorded by the courts below are not sustainable in the eye of law, as the same are not based upon the correct appreciation of evidence adduced on record by the respective parties and as such, same deserve to be quashed and set-aside. Mr. Rathore, while inviting attention of this Court to the impugned judgment passed by the learned Additional Sessions Judge, strenuously argued that bare perusal of the same suggests that evidence led on record by the respective parties, was not read in its right perspective, as a result of which, erroneous findings have come on record to the detriment of the petitioner accused. Learned counsel further contended that the evidence, if read, in its entirety, it can be safely inferred that the complainant was nowhere able to prove that cheques in question were issued by the accused to him for discharge of any legal enforceable debt or other liability. He further argued that the complainant has failed to prove that whether the accused had filled up the aforesaid cheques or not. Mr. He further argued that the complainant has failed to prove that whether the accused had filled up the aforesaid cheques or not. Mr. Rathore further contended that the petitioner was not able to prove the liability, if any, of the petitioner-accused towards him for payment of any money and as such, there was no occasion for the courts below to pass impugned judgments of conviction against the petitioner accused. Mr. Rathore further contended that learned court below also failed to take note of the fact that the respondent complainant is not such a strong financial institution, who could provide a huge amount of loan to the petitioner accused and as such, merely on the basis of complaint having been made by the complainant, version put forth by him, could not believed without there being cogent and convincing evidence led on record by him. He further stated that learned court below failed to appreciate the settled preposition of law that the petitioner accused is only required to rebut presumption of Section 118 and 139 of the Act by the evidence of preponderance of probability, which was duly discharged by him and as such, burden, if any, to prove the liability, was upon the petitioner accused. In the aforesaid background, learned counsel representing the petitioner accused stated that the impugned judgments of conviction recorded by the court below deserve to be quashed and set-aside being contrary to evidence available on record as well as law. 6. On the other hand, Mr. Jeevesh Sharma, learned counsel representing the respondent supported the impugned judgment of conviction recorded by the courts below. Mr. Sharma, while referring to the impugned judgments passed by the courts below vehemently argued that bare perusal of the same suggests that there is no illegality and infirmity and as such, there is no scope of interference whatsoever of this Court, especially in view of the concurrent finding of the fact and law, recorded by the courts below. With a view to refute the aforesaid contentions having been made by the learned counsel representing the petitioner accused, Mr. Sharma, made this Court to travel through the evidence led on record by the complainant to demonstrate that the complainant specifically proved on record that the cheques in question were given by the petitioner accused to him with a view to discharge his liability. Mr. Sharma, made this Court to travel through the evidence led on record by the complainant to demonstrate that the complainant specifically proved on record that the cheques in question were given by the petitioner accused to him with a view to discharge his liability. Mr. Sharma, further contended that evidence adduced on record by the complainant clearly proves beyond doubt that the complainant successfully proved on record that an amount of Rs. 8 lacs was advanced to the petitioner, who with a view to discharge his liability handed over two cheques, which were ultimately dis-honored on account of insufficient funds. Mr. Sharma specifically also invited attention of this Court to the provisions of law contained in Section 118 and 139 of the Act to demonstrate that presumption, if any, by the court below could be drawn in favour of the person in whose favour, the cheques were duly issued by the accused for discharge of his liability. In the aforesaid background, he prayed for dismissal of the present petition. 7. I have heard the learned counsel for the parties and carefully gone through the record. 8. Though perusal of statement of the petitioner accused recorded under Section 313 of the Cr.PC suggests that he denied the case of the prosecution in toto, but despite sufficient opportunity, no defence evidence was led by him in support of his version. 9. This Court with a view to ascertain the genuineness and correctness of the submissions having been made by the learned counsel for the petitioner carefully perused the impugned judgments passed by the courts below as well as evidence led on record by the respective parties, perusal whereof nowhere suggests that there is mis-appreciation and misinterpretation of the evidence led on record by the complainant, rather bare perusal of the same suggests that the complainant successfully proved on record that the complainant advanced a sum of Rs. 8 lacs to the petitioner-accused, who in turn handed over two cheques amounting to Rs. 6,50,000/- which were ultimately dis-honored on account of insufficient funds in the account of the petitioner accused. 10. Complainant, with a view to prove his case examined himself as CW1 and stated that he had given Rs. 50,000/- on 5.9.2009 in cash and issued a cheque of Rs. 1 lac on 7.9.2009. Complainant further stated that on 4.11.2009, he again gave a sum of Rs. 10. Complainant, with a view to prove his case examined himself as CW1 and stated that he had given Rs. 50,000/- on 5.9.2009 in cash and issued a cheque of Rs. 1 lac on 7.9.2009. Complainant further stated that on 4.11.2009, he again gave a sum of Rs. 1 lac in cash to the petitioner accused and issued a cheque of Rs. 4 lac on 21.11.2009. Complainant also stated that at the time of taking aforesaid amount, petitioner accused had executed documents (C1 to C3) on non-judicial paper. The complainant also proved on record cheques i.e. C4 and C5, having been issued by the accused for discharge of his liability. Complainant also made available on record memos issued by the Bank intimating therein dishonouring of cheques Ext. C6 & C7 respectively. The complainant also proved on record demand notice (C8) dated 8.9.2011, issued to the accused on his correct address and its postal receipts are Ext.C9 and C10. Cross examination conducted on the complainant nowhere suggests that the petitioner accused was able to shatter the testimony of complainant (CW1), who in unequivocal terms stated that he advanced Rs. 8 lacs to the petitioner in cash as well as cheques drawn at HP State Co-operative Bank. He also stated that he was having FDRs in the Bank and said bank used to deduct Income Tax from the aforesaid FDRs. In his cross examination, the complainant admitted that since he is having FDRs, he does not file Income Tax return separately, and has not shown this amount of Rs. 8,00,000/- in his Income Tax return. The complainant specifically deposed before the court below that the accused had filled contents of the cheques in his presence; however, he denied the suggestion put to him that the accused had never borrowed Rs. 3 lacs from him. Similarly, the complainant also denied suggestion put to him by the accused that he had only borrowed Rs. 3 lacs and had given blank signed cheques to him as security. The complainant in his cross examination denied the suggestion put to him that he misused the blank signed cheques issued by the accused to the complainant as security. 11. Similarly, the complainant also denied suggestion put to him by the accused that he had only borrowed Rs. 3 lacs and had given blank signed cheques to him as security. The complainant in his cross examination denied the suggestion put to him that he misused the blank signed cheques issued by the accused to the complainant as security. 11. Close scrutiny of aforesaid statement having been made by the complainant leaves no doubt in the mind of the Court that cheques in question were actually issued by the petitioner accused in favour of the complainant in discharge of his liability. If the cross examination conducted on CW1 is carefully examined, it certainly compels this Court to draw a conclusion that there is a clear cut admission on the part of the accused with regard to the issuance of cheques because in cross examination suggestion was put to the complainant that accused had only borrowed Rs. 3 lacs and had given blank cheque for security, which was mis-used by him. At the cost of repetition, it may be stated that though in statement under Section 313 Cr.PC, the petitioner accused denied the case of prosecution in toto but if pattern of cross examination conducted on the complaint, is seen and analyzed carefully, it clearly suggests that the cheques in question were issued by the petitioner accused. Similarly, perusal of documents Ext.C1 to C3 i.e. receipts given by the petitioner accused at the time of borrowing money from the petitioner-accused, further corroborates the version put forth by the complainant in his complaint as well as statement. Perusal of Ext. C4 to C10 further suggests that the complainant successfully proved his case in terms of provisions contained in Section 138 of the Act. Apart from above, the petitioner accused himself admitted dis-honoring of cheques Ext. C4 and C5vide memos C6 and 7. Similarly, there is no dispute, if any, of delivery of demand notice (C8) by the complainant as well as postal receipts (C9 and C10) regarding the same. Rather, in nutshell case of the accused before the court below was that he had only borrowed Rs. C4 and C5vide memos C6 and 7. Similarly, there is no dispute, if any, of delivery of demand notice (C8) by the complainant as well as postal receipts (C9 and C10) regarding the same. Rather, in nutshell case of the accused before the court below was that he had only borrowed Rs. 3 lacs from the complainant and he had given blank cheques to the complainant for security, which were ultimately misused by the complainant, but there is no evidence as such, led on record by the petitioner accused to substantiate his aforesaid plea having been taken by him in his statement recorded under Section 313 of the Cr.PC. Though, learned counsel representing the petitioner accused argued that the accused was only required to rebut presumption of Section 118 and 139 of the Act by evidence of preponderance, which was successfully discharged by him and burden, if any, to prove the liability on account of the petitioner accused was on complainant, but aforesaid argument having been made by the learned counsel representing the petitioner accused deserves to be rejected outrightly in view of the overwhelming evidence led on record by the complainant, which clearly proves beyond doubt that an amount of Rs. 8 lac was advanced to the petitioner accused by the complainant, who in turn with a view to discharge his liability had issued two cheques amounting to Rs. 5 lacs and 1,50,000/- (Rs. 6,50,000/- in total) respectively. 12. The petitioner accused while refuting the aforesaid claim of the complainant, made an attempt to prove that he had only borrowed Rs. 3 lac from the complainant and had issued blank signed cheques to the complainant as a security, which were misused by the complainant. But there is no evidence worth the name available on record to prove the aforesaid stand taken by the petitioner accused and as such, it cannot be said that the petitioner accused was able to prove his point by defence of preponderance of probabilities. The complainant has specifically denied the suggestion put to him with regard to borrowing of only Rs. 3 lacs and issuance of blank cheque as security, rather, CW1 in his cross examination had specifically stated that accused had filled up contents of cheques in his presence. No evidence worth the name was led by the prosecution to rebut the aforesaid stand having been taken by the complainant. 3 lacs and issuance of blank cheque as security, rather, CW1 in his cross examination had specifically stated that accused had filled up contents of cheques in his presence. No evidence worth the name was led by the prosecution to rebut the aforesaid stand having been taken by the complainant. Similarly, this court was unable to lay its hand to any evidence led on record by the petitioner accused form where, it could be inferred that the cheques in issue, were issued as security and not towards the amount which was borrowed by the petitioner accused from the complainant. 13. Similarly, this Court sees that no suggestion, if any, qua the financial capacity of the complainant was put to the complainant, hence, statement having been made by the complainant that he is having FDR with bank stood un-rebutted. True it is, that the complainant in his statement stated that he does not file any Income Tax return and as such, he has not shown in Income Tax return but same cannot be sufficient to conclude that aforesaid amount of Rs. 8 lacs could not be advanced to the petitioner accused by the complainant, hence, this Court sees no reason to differ with the well reasoned judgments passed by the courts below that the accused miserably failed to rebut the presumption under Section 118-A and 139 of the IPC which lies in favour of the complainant that accused had issued three cheques for consideration in discharge of his liability by raising reasonable and probable defence. Perusal of evidence adduced on record by the complainant suggests that the complainant successfully proved on record by leading cogent and convincing evidence that he had advanced an amount of Rs. 8 lacs to the petitioner-accused, who in turn, issued cheques for discharge of his liability, which were ultimately dish-onored on account of insufficient funds. 14. Leaving everything aside, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the court below. 14. Leaving everything aside, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the court below. In this regard, reliance is placed upon the judgment passed by Hon''ble Apex Court in case " State of Kerala v. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452 , wherein it has been held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." Since after carefully examining the evidence, in the present case, this Court was unable to find any error of law as well as fact committed by the courts below while passing impugned judgment, and as such, there is no occasion, whatsoever, to exercise the revisional power. 15. Consequently, in view of the detailed discussion made herein above, this court sees no illegality and infirmity in the judgments passed by the courts below and as such, same are upheld. Accordingly, the present petition is dismissed and the petitioner accused is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by learned trial Court. Needless to say that order dated 31.10.2014, passed by this Court, whereby sentence imposed by the Court below was suspended, shall stand vacated automatically. Pending applications, if any, stand disposed of.