Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1201 (HP)

Laxmi Dhar v. Gurdial Singh

2018-07-03

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. 1. Instant Criminal Appeal is directed against the judgment, dated 26.7.2010, passed by learned Judicial Magistrate 1st Class, Kandaghat, District Solan, H.P., in Criminal Case No.15/3 of 2002, whereby the complaint under Section 138 of the Negotiable Instruments Act, having been filed by the appellant (hereinafter referred to as the complainant) has been rejected. 2. Briefly stated facts as emerge from the record are that the complainant filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) against the respondent (hereinafter referred to as the accused), alleging therein that with a view to discharge liability and for consideration, accused had issued cheque bearing No. 465181, dated 20.9.2002, amounting to Rs. 1,80,000/- in favour of the complainant, drawn on UCO Bank, Kandaghat of his account No.7693. However, fact remains that aforesaid cheque issued by the accused was dishonoured on its presentation. UCO Bank Kandaghat returned the cheque in question with the remarks “insufficient funds” and “ payment stopped by the drawer”. After having received aforesaid information from the bank concerned, complainant got legal notice issued to the accused calling upon him to make the payment within stipulated period, but since accused failed to make the payment good within period prescribed in legal notice, he was compelled to initiate proceedings under Section 138 of the Act, in the competent Court of law. 3. Subsequently, learned trial Court on the basis of the material adduced on record by the respective parties, held accused not guilty of having committed offence punishable under Section 138 of the Act and accordingly, acquitted him and dismissed the complaint. In the aforesaid background, complainant has approached this Court in the instant proceedings, seeking therein conviction of accused, after setting aside the judgment of acquittal recorded by the learned trial court. 4. Mr. Sanjay Kumar Sharma, learned counsel representing the complainant, vehemently submits that impugned judgment of acquittal recorded by the learned trial Court is not sustainable in the eyes of law, as the same is not based upon the correct appreciation of the evidence adduced on record and as such, same deserve to be quashed and set-aside. Mr. 4. Mr. Sanjay Kumar Sharma, learned counsel representing the complainant, vehemently submits that impugned judgment of acquittal recorded by the learned trial Court is not sustainable in the eyes of law, as the same is not based upon the correct appreciation of the evidence adduced on record and as such, same deserve to be quashed and set-aside. Mr. Sharma, further contends that bare perusal of the evidence led on record by the respective parties would go to show that learned court below has not appreciated the evidence in its right perspective, as a consequence of which, erroneous findings have come on record to the detriment of the complainant, who had advanced a sum of Rs. 1,80,000/- to the accused in good faith. 5. With a view to substantiate his aforesaid argument, Mr. Sharma, made this Court to peruse the evidence led on record by the respective parties to demonstrate that complainant successfully proved on record that he had provided certain amount of fund to the accused, who in turn had issued cheque for discharge of his lawful liability. He further states that it stands duly proved on record that cheque in question on its presentation was returned by the bank concerned and accused despite having received the legal notice, failed to make the payment good and as such, there was no occasion left for the Court below to dismiss the complaint and acquit the accused. 6. Lastly, Mr. Sharma, contends that accused has admitted his signature on the cheque in question in his statement recorded under Section 313 of the Code of Criminal Procedure and he has nowhere denied the factum with regard to issuance of the cheque, rather defence taken by him ought not to have accepted by the Court below being highly improbable. In the aforesaid background, Mr. Sharma, prayed that present appeal may be accepted and accused be convicted of having committed the offence punishable under Section 138 of the Act, and suitable compensation may be awarded in favour of the complainant. 7. Mr. Suneet Goel learned counsel representing the respondent-accused, while supporting the impugned judgment of acquittal, contends that bare perusal of the same suggest that learned court below has appreciated the evidence in its right perspective and has rightly arrived at a conclusion that cheque in question was procured by the complainant under pressure. Mr. 7. Mr. Suneet Goel learned counsel representing the respondent-accused, while supporting the impugned judgment of acquittal, contends that bare perusal of the same suggest that learned court below has appreciated the evidence in its right perspective and has rightly arrived at a conclusion that cheque in question was procured by the complainant under pressure. Mr. Goel, further contends that complainant has miserably failed to prove before the court below that he had advanced a sum of Rs. 1, 80,000/- to the respondent-accused because no agreement, if any, arrived inter se parties is placed before the learned court below and as such, Court below rightly came to the conclusion that cheque in question was procured forcibly with the aid of police by the complainant. While referring to the defence evidence adduced on record, Mr. Goel, argues that it stands duly proved on record that police at Kandaghat called the accused at police Station, Kandaghat on the insistence of complainant and procured cheque coercively. He further states that it has specifically come in the statements of DW1, Sh. Bal Kishan and DW4, MHC Daulat Ram that cheque Ex.CW1/A was filled by MHC, Daulat Ram and as such, it can be fairly concluded that cheque in question issued by the accused was not towards discharge of lawful liability, rather same was procured by the complainant under pressure with the aid of the police. 8. I have heard learned counsel representing the parties and gone through the record carefully. 9. It is quite apparent that cheque Ex.CW1/A, amounting to Rs. 1, 80,000/- was signed by the accused. Accused in his statement recorded under Section 313 Cr.P.C. has admitted his signature on the cheque, but has alleged that same was procured forcibly by the complainant at police Station, Kandaghat. He further alleged that there is a land in the name of the complainant’s wife and he had got the deal settled with one Jagdish at Solan, who subsequently failed to pay the whole amount to the complainant’s wife that’s why complainant took him to police station and obtained cheque. Accused also examined four witnesses in support of his defence. 10. Accused also examined four witnesses in support of his defence. 10. No doubt, in the case at hand, complainant with a view to prove its case placed on record cheque, dated 20.9.2002 Ex.CW1/A, cheque returning memos Ex.CW1/B and Ex.CW1/C issued by UCO Bank, copy of legal notice Ex.CW1/D, receipt of under postal receipt Ex.CW1/E and postal receipt CW1/F. 11. With a view to prove aforesaid documents, complainant himself examined as CW1 and reiterated the averments made in the complaint. He deposed that cheque Ex.CW1/A issued by the accused was presented in the bank concerned, but same was returned with the remarks “insufficient funds” and payment stopped by the drawer. He further deposed that registered notice through advocate Ex.CW1/D was sent to accused under postal receipts Ex.CW1/F and Ex. CW1/E, but despite that accused failed to make the payment. 12. Complainant also examined Sh. Ranjeet Singh, Clerk of UCO Bank, Kandaghat as CW2, who deposed that on 29.8.2002 cheque was presented by the complainant in the bank, but there was Rs.316/in the account of the accused and memos Ex.CW1/B and Ex.CW1/C were issued by their bank. He also admitted that accused had written a letter to their bank to stop the payment. Cross-examination conducted on the complainant (CW1) is very crucial for the adjudication of the case in the light of the defence taken by the accused. Complainant (CW1) categorically admitted that he works in S.S.B, Delhi on the post of Constable and accused had procured loan amounting to Rs. 1, 80,000/- on 29.8.2002 from him. He also admitted that no agreement was executed regarding the advancement of loan and the cheque was issued by the accused to him at his house, which was filled by the accused in his own handwriting and signed by the accused. He also admitted that his wife and sister-in-law are having immovable property at District Shimla. Though, he feigned ignorance that his wife and sister-in-law had executed a Power of Attorney in favour of accused Gurdial Singh for sale of land situated at District Shimla, but admitted that her wife and sister-in-law are having immovable property in District Shimla. This witness also denied the suggestion put to him that cheque in question was procured by him at police Station, Kandaghat with the aid of police. He categorically denied that he had ever visited the police station. This witness also denied the suggestion put to him that cheque in question was procured by him at police Station, Kandaghat with the aid of police. He categorically denied that he had ever visited the police station. He also denied that on the next day of issuance of cheque, accused had got the cheque payment stopped because cheque was procured under pressure. 13. On the other hand, accused with a view to prove its defence apart from examining himself also examined Sh. Bal Kishan as DW1, who deposed that complainant, his wife and the accused are known to him and in his presence Kanta Devi executed a Power of Attorney Ex.DW1/A in favour of the accused. He also stated that cheque Ex.CW1/A was issued by the accused at police station, Kandaghat. The cheque was filed by SHO, Police Station, Kandaghat. He further deposed that cheque was procured from the accused under the pressure of police. In his cross-examination, he stated that Kanta Devi is sister-in-law of complainant Laxmi Dhar. He also admitted that he was called by the complainant to police station, Kandaghat. 14. Other defence witness Sh. Jai Ram (DW2) also corroborated the version put forth by DW1 that in his presence Basanti Devi and Geeta Devi had executed Power of Attorney Ex.DW2/A in favour of the accused. In cross-examination, he stated that Power of Attorney was given to accused to sell the land of Basanti Devi and Geeta Devi. He is one of the witness to the Power of Attorney. 15. Accused also examined Sh. Ramesh Chauhan, SHO, police Station, Kandaghat as DW3. Though, he admitted the factum with regard to his posting at police Station, Kandaghat in the year, 2002, but feigned his ignorance regarding filling of cheque Ex.CW1/A. 16. DW4, ASI Daulat Ram also deposed that in the year 2002, he was posted as MHC at police Station, Kandaghat. He specifically stated that on 29.8.2002 he was posted at Kandaghat and there was a dispute of money between the complainant and the accused. He deposed that complainant had produced the accused at police station and he had asked them to compromise the matter. He also admitted that words written in the cheque Ex.CW1/A, in circle A, B, C and D are written by him, thereafter cheque was handed over to the complainant. He deposed that complainant had produced the accused at police station and he had asked them to compromise the matter. He also admitted that words written in the cheque Ex.CW1/A, in circle A, B, C and D are written by him, thereafter cheque was handed over to the complainant. Though, he denied that cheque was procured by putting pressure on the accused, but in cross-examination, he stated that the cheque was handed over to him by the accused and on his request, he had filled that cheque. He also stated that the cheque in question was signed by the accused in his presence. 17. Accused himself examined as DW5 and deposed that he had not taken any loan from the complainant and had not filed the cheque. He reiterated that complainant’s wife Basanti Devi, his sister-in-law Kanta Devi and Geeta Devi executed Power of Attorney in his favour and there was money dispute between the owner and the purchaser and he had only executed the sale deed. He stated that cheque in question was procured from him at police Station, Kandaghat, where he was taken by the complainant and one police official. He deposed that at police station, he was searched by the police official and from his back cheque was taken by the police and complainant and thereafter, his signatures were procured by the police under pressure by threatening him that they will implicate him in a false case. He further stated that thereafter he went to bank and requested bank officials to stop the payment. In cross-examination, DW5 admitted that one civil case against him is pending in the Court of learned Civil Judge, Court No.3, Shimla, wherein other party had levelled allegations of fraud against him. He specifically denied the suggestion put to him that he procured Power of Attorney by playing fraud. Though, he admitted his signature on the cheque, but claimed that his signatures were procured forcibly. He has admitted that Power of Attorney was prepared at Kandaghat. He also admitted that sale deed was executed in favour of Manju. He denied that he has taken money from the purchaser and it was not paid to the original owners. 18. Though, he admitted his signature on the cheque, but claimed that his signatures were procured forcibly. He has admitted that Power of Attorney was prepared at Kandaghat. He also admitted that sale deed was executed in favour of Manju. He denied that he has taken money from the purchaser and it was not paid to the original owners. 18. Close scrutiny of the evidence led on record by the complainant certainly indicates that wife and sister-in-law of the complainant had some immovable property at District Shimla and they had executed Power of Attorney in favour of the accused for the sale of the land situated at District Shimla. Though, complainant has denied the factum with regard to execution of Power of Attorney in favour of the accused for sale of the land, but if cross-examination conducted upon defence witnesses, especially DW5, there appears to be some force in the argument of learned counsel representing the accused that wife and sister-in-law, who had immovable property at District Shimla had executed power of attorney in favour of the accused authorizing him to sell the land. Cross-examination conducted upon the accused and other defence witnesses further suggest that money allegedly received by the accused after selling the land in question in term of Power of Attorney executed by the wife and sister-in-law of the complainant was not paid and as such, complainant lodged complaint against the accused at police station, Kandaghat. Though, complainant has denied his visiting at police station, Kandaghat, but careful perusal of the statement made by two police officials i.e. DW3 and DW4 proves the case of the defence that he was called at police station, Kandaghat on the askance of the complainant. Statements having been made by police officials further reveal that there was some dispute of money between the complainant and the accused and as such, version put forth by the complainant was rightly not accepted by the court below being unreliable. Accused, who had taken defence in his statement recorded under Section 313 Cr.P.C that complainant in connivance with the police officials procured the signature of the accused on Ex. CW1/A, without his consent, successfully proved on record by examining DW1, DW2, DW3 and most importantly DW4 that cheque in question was not issued towards discharge of any liability, rather same was procured by the complainant under pressure with the aid of police. CW1/A, without his consent, successfully proved on record by examining DW1, DW2, DW3 and most importantly DW4 that cheque in question was not issued towards discharge of any liability, rather same was procured by the complainant under pressure with the aid of police. Power of Attorney executed by the complaint's wife and sister-in-law in favour of the accused has been duly proved by accused person by examining DW1 and DW2. Otherwise also, careful perusal of the statement made by complainant nowhere suggests that factum with regard to execution of power of attorney by his wife and sister-in-law in favour of the accused was denied candidly, rather he evasively replied to the aforesaid submission/assertion made on behalf of the accused. DW4, MHC, Daulat Ram, has categorically stated that the complainant and the accused had some money dispute regarding the land transaction, which strengthen the case of the accused that Power of Attorney Ex.DW1/A was executed in his favour and he had sold the land to one Smt. Manju and dispute was with regard to the money. 19. Having carefully perused the entire evidence available on record, this court is in agreement with the findings returned by the learned court below that complainant did not approach the court with clean hands and made an attempt to suppress the material facts by coining the story that he had advanced the loan of Rs. 1, 80,000/- to the accused, who in turn issued cheque Ex.CW1/A with a view to discharge his liability. Though, there is no cogent and convincing evidence led on record by the complainant suggestive of the fact that he had advanced aforesaid amount to the accused, but to the contrary accused successfully proved on record that since there was money dispute between him and the accused on account of sale of land made by him on the strength of General Power of Attorney executed in his favour by wife and sister-in-law of the complainant, complaint was called at police station Kandaghat and police forcibly procured cheque in question from him. Aforesaid defence of the accused seems to be probable because DW4 MHC, Daulat Ram, has categorically admitted the factum of filling of cheque by him. Aforesaid defence of the accused seems to be probable because DW4 MHC, Daulat Ram, has categorically admitted the factum of filling of cheque by him. Though, in his statement he has stated that cheque in question was signed by the accused, but there is clear cut admission on his part that he himself filled the cheque, which clearly suggest that cheque in question was procured at police station, Kandaghat. At this stage, it would be relevant to take note of the averments made in the complaint as well as statement made by the complainant that accused with a view to discharge his liability issued cheque and same was filled up at his house, which version put forth by him is in total contradiction to the version of official witness DW4, who categorically stated that cheque in question was filled by him at police station, Kandaghat. 20. It is well settled that accused can raise probable defence either by relying upon the documents, if any, placed on record by the complainant or by showing evidence to the effect that cheque in question was not issued by him towards discharge of any liability or consideration. In the case at hand, though accused has admitted his signatures on the cheque, but has successfully proved that cheque in question was not towards the liability, rather same was procured by the complaint under pressure of the police that too against some sale transaction made by accused on the strength of General Power of Attorney executed in his favour by the wife and sister-in-law of the complainant. 21. Definitely, there cannot be any quarrel with the submission/argument advanced by Mr. Sanjay Kumar Sharma, learned counsel representing the complainant that under Section 139 of the Act, there is presumption in favour of the holder of the cheque that cheque in question was for the discharge, in whole or in part, or any debt or other liability. Certainly Section 139 of the Act, creates a presumption in favour of the holder of a cheque, the said section provides that “it shall be presumed that, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability”. But, aforesaid presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. Once a cheque is issued by a drawer, a presumption under Section 139 must follow and merely because the drawer issued notice to the drawee or to the bank for stoppage of payment it will not preclude an action under Section 138 of the Act by the drawee or the holder of the cheque in due course. But, as has been observed above, presumption as envisaged under Section 139 is rebuttable. 22. Section 118 of the Act provides that until the contrary is proved, it shall be presumed that negotiable instrument was made or drawn for consideration and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. But, needless to say, presumption both under Sections 118(a) and 139 of the Act, are rebuttable in nature. What would be the effect of the expression “ May Presume’, ‘ Shall Presume’ and ‘ Conclusive Proof has been considered by Hon’ble Apex Court in Union of India versus Pramod Gupta by L.Rs and Ors, (2005) 12 SCC in the following terms:- "It is true that the legislature used two different phraseologies "shall be presumed" and "may be presumed" in Section 42 of the Punjab Land Revenue Act and furthermore although provided for the mode and manner of rebuttal of such presumption as regards the right to mines and minerals said to be vested in the Government vis-a-vis the absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words "shall presume" would be conclusive. The meaning of the expressions "may presume" and "shall presume" have been explained in Section 4 of the Evidence Act, 1872, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved. In terms of the said provision, thus, the expression "shall presume" cannot be held to be synonymous with "conclusive proof"" 29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. In terms of the said provision, thus, the expression "shall presume" cannot be held to be synonymous with "conclusive proof"" 29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words 'proved' and 'disproved' have been defined in Section 3 of the Evidence Act (the interpretation clause) to mean: " Proved” .A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. “Disproved”.-A fact is said to be disproved when, after considering the matters before it the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist." 30. Applying the said definitions of 'proved' or 'disproved' to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the nonexistence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. 23. It can be safely inferred from the aforesaid exposition of law laid down by the Hon’ble Apex Court that Court shall presume a negotiable instrument to be for consideration unless and until, it, after having considered the material before it, either believes that consideration does not exist or considers the nonexistence of the consideration so probable that even a wise-man in the given facts and circumstance of particular case ought to have acted upon the supposition that it does not exist. No doubt for rebutting such presumption, probable defence is required to be raised and in this regard material relied upon by the complainant can also be relied upon. 24. No doubt for rebutting such presumption, probable defence is required to be raised and in this regard material relied upon by the complainant can also be relied upon. 24. The Hon’ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein: “23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan [3] held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof”. The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities. 24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. 24. Therefore, if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy.” 25. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy.” 25. At the cost of repetition, it may be observed that in the case at hand, as has been observed hereinabove, accused has been able to establish probable defence that cheque in question allegedly issued by him was not towards discharge of liability, if any, rather same was procured by the complainant at police station under pressure that too not towards consideration/amount, if any, payable by accused to the complainant. Rather, it stands proved that there was money dispute between the accused and the wife and sister-in-law of the complainant, who had executed Power of Attorney in favour of the accused authorizing him to sell their land. 26. Consequently, in view of the detailed discussion made herein above as well as the law laid down by the Hon’ble Apex Court, this Court sees no reason to interfere with the judgment dated 26.7.2010, passed by the learned Judicial Magistrate, 1st Class, Kandaghat, District Solan, Himachal Pradesh in Criminal Case No.15/3 of 2002, which is accordingly, upheld. In result, appeal fails and is accordingly dismissed. Bail bonds furnished by the accused are discharged. Pending applications, if any are disposed of.