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2018 DIGILAW 1013 (HP)

HIMACHALI DEVI v. JAI SINGH

2018-05-29

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present criminal appeal, under Section 378 of the Code of Criminal Procedure, is maintained by the appellant/complainant (hereinafter to be called as "the complainant"), against the order dated 28.8.2009, passed by learned Judicial Magistrate, Ist Class, Court No.2, Mandi, H.P. in Private Complaint No.226- I/2008/2007, whereby the complaint, under Section 138 of the Negotiable Instruments Act (hereinafter to be called as the "N.I. Act") filed by the complainant has been dismissed. 2. The key facts, giving rise to the present appeal are that the complainant filed a complaint against the respondent/accused (hereinafter to be called as "the respondent/accused") under Section 138 of the N.I. Act, wherein she alleged that the accused issued a post dated cheque bearing No.SFT114626, dated 15.6.2007 (Ex.CW1/A) of Rs.3, 00, 000/- to the complainant, which the complainant presented in Himachal Gramin Bank, Hatgarh Branch, Tehsil Sadar, District Mandi, H.P. and the banker of the complainant Himachal Gramin Bank, Hatgarh Branch sent the cheque for collection to Punjab National Bank Branch, Sundernagar, however, the same was returned unpaid on account of "payment stopped by the drawer" which intimation was given by Himachal Gramin Bank, Hatgarh Branch to the complainant on 20.6.2007. Thereafter, the complainant requested the accused telephonically with regard to dishonoring the cheque, but he/accused did not care at all and did not pay the amount. Thereafter, the complainant issued a notice, dated 22.06.2007 and the accused replied for the same. Though, no payment of amount covered by the cheque is made. Therefore, the complainant filed a complaint in the Court of learned Judicial Magistrate, Ist Class, Court No.2, Mandi, H.P. on 23.07.2007. 3. The learned Trial Court after recording the preliminary evidence, summoned the accused and directed to furnish personal and surety bonds, which he had furnished. 4. The learned Trial Court after recording the statement of the accused under Section 313 Cr.P.C., acquitted the accused, hence, the present appeal. 5. The appellant also filed an appeal, i.e. Criminal Appeal No.70/2009 against the judgment of acquittal dated 28.8.2009, passed by the learned Judicial Magistrate, Ist, Class, Court No.2, Mandi, H.P. before the learned Additional Sessions Judge(II) , Mandi, District Mandi, H.P., who also vide judgment dated 28.3.2014, dismissed the appeal against acquittal. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. Learned counsel for the appellant has argued that the Court below without appreciating the fact that the cheque has been issued for consideration, dismissed the appeal. He has further argued that the consideration in this case was the payment of maintenance to the wife (complainant) , as she was the nominee in the service record and without there being signatures and other formalities to be completed by the appellant, the money could not have been paid to the respondent at the time of retirement and so for this purpose, the accused made a payment of Rs.3,00,000/- to the wife (complainant) and the cheque was paid for consideration i.e. being wife of the accused. 8. On the other hand, learned counsel appearing for the respondent/accused, has argued that the cheque was without consideration as the complainant has not entered into a compromise that she has received Rs.3,00,000/- as full and final payment of her maintenance and towards all liabilities of the accused. So, the encashment of the cheque was withheld. 9. In rebuttal, the learned counsel for the appellant has argued that the Court below has committed grave illegality and so the appeal be allowed and the accused be convicted. 10. To appreciate the arguments adduced by the learned counsel for the parties, I have gone through the record in detail. 11. In order to substantiate her case, the complainant examined as many as three witnesses. 12. CW.1, Ranjeet Singh Salwani proved that Cheque, Ext.CW1/A was sent to Punjab National Bank, Sundernagar for collection on 15.06.2007, vide memo Ext.CW.1/B, but the same was returned unpaid according to memo Ext.CW.1/C of Punjab National Bank on the ground that payment is stopped by the drawer. 13. CW.2, Nirmal Singh from the Punjab National Bank, Sundernagar, has also proved that the cheque in question was received for collection, but the same was not honoured, because the payment was stopped by the drawer, who is the accused in the present case. 14. The complainant also appeared as CW.3 and deposed that the accused has given her a cheque of Rs.3,00,000/- Ext.CW.1/A. She further deposed that the cheque was deposited for collection by her in Himachal Gramin Bank, Hatgarh Branch, from where, it was sent to Punjab National Bank, Sundernagar, but it was returned unpaid. 14. The complainant also appeared as CW.3 and deposed that the accused has given her a cheque of Rs.3,00,000/- Ext.CW.1/A. She further deposed that the cheque was deposited for collection by her in Himachal Gramin Bank, Hatgarh Branch, from where, it was sent to Punjab National Bank, Sundernagar, but it was returned unpaid. She also issued a legal notice, Ext.CW.1/E to the accused, which was replied by the accused vide Ext.CW.1/G. In cross-examination, she admitted that the accused is her husband and cases are pending. She further admitted that an amount of Rs.1,000/- was allowed by the Court in her favour as monthly maintenance, which was being paid to her regularly. It has been stated that the accused had also filed an appeal against the order of maintenance and a divorce petition against the complainant. She has further stated that she is not residing with the accused (Jai Singh) for the last about 20-25 years. She has further deposed that the accused has contracted second marriage and has six children and also that the cheque was given to her as maintenance. She has also deposed that the accused was to retire from his job and she demanded amount and her husband told her that he will give some maintenance to her. She also admitted that the litigation is going on in between her and her husband/accused for the last 20 years. She denied the suggestion that the accused has told in the presence of one Inder Singh that the complainant should take Rs.3,00,000/- and to give divorce to him. She also denied that she has also told to withdraw the maintenance suit after receiving Rs.3,00,000/-. The complainant further denied that when she refused to take Rs.3,00,000/- as lump-sum, the accused got the payment stopped. She further denied that the cheque was given by her husband/accused for full and final settlement of maintenance. She denied that when she did not agree for divorce, accused got the payment stopped. 15. The accused when examined under Section 313 Cr.P.C., has maintained that the complainant told to settle the matter and asked him to give cheque and divorce will be there. The accused has stated that the complainant, however, did not enter into compromise therefore, the accused stopped the payment. 16. The accused examined one Suresh Kumar Sharma, who was from the Punjab National Bank, Sundernagar. The accused has stated that the complainant, however, did not enter into compromise therefore, the accused stopped the payment. 16. The accused examined one Suresh Kumar Sharma, who was from the Punjab National Bank, Sundernagar. He deposed that the accused stopped payment by a request letter dated 05.06.2007, which was to the effect that a litigation is pending and that till the decision of that litigation, payment may not be made. In the application of the accused produced by the witness, as D.1, it has been mentioned that the complainant has agreed to receive full and final maintenance amount of Rs.3,00,000/- for whole life and in this regard the complainant issued the cheque. 17. It has been alleged that, in the notice, Ext.CW.1/B, which was sent by the complainant, nothing has been mentioned as to why the complainant received the cheque in question. In the reply, Ext.PW1/G, it has been mentioned that the cheque was issued in lieu of full and final maintenance demanded by the complainant and the complainant also agreed to compromise in all the cases pending between the complainant and the accused and, therefore, complainant received the cheque and the accused handed over the same in good faith. It has been mentioned in the reply to the notice that accused offered to pay the cheque amount on the condition of complainant fulfilling her commitment of compromise, the cases pending in the Court and to agree for a decree of divorce dissolving the marriage between the complainant and the accused. 18. It has been alleged that the complainant has not given any indication in the complaint as to why she received cheque in question. In examination-in-chief, as CW.3, the complainant did not depose anything about the reason of receiving the cheque by her. It has been alleged that other litigation regarding some matrimonial dispute was also pending. 19. The accused while appearing as DW.2, has deposed that the maintenance amount was enhanced by the Court, so, he challenged that order. It has been deposed that in the month of February, 2007, the complainant came to him (the accused) and told that the accused is going to retire from service and will get amount at the time of retirement, therefore, he should finally settle the matter and that the complainant will withdraw all the cases filed by the complainant against the accused and will also divorce the accused. This is alleged to have been agreed in the presence of one Inder Singh. According to him, thereafter, he brought his cheque book and gave a post-dated cheque of Rs.3, 00, 000/-. The accused has further deposed that he issued a post-dated cheque of dated 15.06.2007, because he could have received amount from the department. However, complainant did not consented for divorce nor entered into a full and final settlement of maintenance, therefore, the accused applied to the Bank Manager by an application, Ext.D.1 and got stopped the payment of cheque. In his cross-examination, the accused has admitted that the complainant used to send complaints against him and again regarding second marriage by him. He denied that the complainant (Himachali Devi) has demanded land and room from him. He denied that he himself told the complainant to withdraw the complaint and that he agreed to pay maintenance and money to the complainant for raising of house. However, there is no such averment in the complaint nor any deposition of complainant on oath. The accused has admitted that he has not filed any case against the complainant and he has filed the petition for divorce and reducing the maintenance. He denied that he has issued cheque, Ext.CW.1/A to the complainant for maintenance and admitted that he has given cheque for final settlement. He also denied that for final settlement of litigation and divorce no conversation was entered into and also denied that Inder Singh was not present. 20. Dw.3, Inder Singh deposed that he visited Sanskrit College on the request of the accused and a talk for final settlement was taken place and thereafter, the accused issued a cheque of Rs.3,00,000/- to the complainant. 21. The evidence as led by the defendant is not trustworthy for the reason that the complainant has went to the office of the accused and there only the cheque was issued. The case of the complainant was that, as the accused was only to get retirement benefits, after the formalities were being completed by the wife, i.e. the complainant. So, to get the formalities completed and take her signatures, the accused gave her a cheque of Rs.3,00,000/-. The case of the complainant was that, as the accused was only to get retirement benefits, after the formalities were being completed by the wife, i.e. the complainant. So, to get the formalities completed and take her signatures, the accused gave her a cheque of Rs.3,00,000/-. This means that the complainant, who was the wife of the respondent/accused, was definitely a nominee and otherwise also has a right in the earnings and the retirement benefits of the accused being his wife, but the accused with mala fide intentions made her to sign the papers wherever required and gave her a cheque of Rs.3,00,000/-. This payment of Rs.3,00,000/- is thus for consideration, i.e. the complainant being the wife of the accused and the accused has given her a cheque of Rs.3,00,000/- as being her husband for her maintenance etc. etc., as she is living alone, as the accused has contracted second marriage and has children from the second marriage. Further, the presumption of truth is attached to the cheque under Section 139 of the Negotiable Instruments Act and that presumption is not rebutted by the accused. So, the presumption that the cheque was issued for consideration is not rebutted by any cogent evidence. The evidence of the accused is interested and cannot be relied upon. Even if we accept the case of the accused, what was the necessity for him to issue postdated cheque without there being any compromise, as the case is projected by him. There is no explanation on behalf of the accused to this effect that why he issued the post-dated cheque when he could have given the cheque at the time of compromise, if the cheque was to be given for the purpose of compromise only. Rather, the case of the complainant that the cheque was issued to her (complainant), as the pensionary/retiral benefits could not have been released to the accused without there being formalities completed by the complainant being the wife of the accused. So, the accused gave her cheque of Rs.3,00,000/-. Thus, the statements of the witnesses of the complainants are fortified by the circumstances as well and without there being any explanation or rebuttal on behalf of the complainant that the cheque was not issued for consideration, the presumption attached to the fact that the cheque was issued for consideration is always there. Thus, the statements of the witnesses of the complainants are fortified by the circumstances as well and without there being any explanation or rebuttal on behalf of the complainant that the cheque was not issued for consideration, the presumption attached to the fact that the cheque was issued for consideration is always there. All other ingredients were proved that the issuance of the notice within stipulated time, non payment of the amount after receipt of the notice within one month, thus, clearly and conclusively proves the guilt of the accused under Section 138 of the Negotiable Instruments Act, as discussed hereinabove. So, the accused is convicted under Section 138 of the Negotiable Instruments Act. Let the accused be called for pronouncement of the sentence on 30.05.2018.