Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 2078 (HP)

Bali Ram (deceased) Through Lrs v. Dignity Motors

2018-11-26

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J. - The original accused/convict - Bali Ram died when the matter was pending before the learned Additional Sessions Judge in the earlier appeal being Criminal Appeal No. 14 of 2001 and the present petitioners are his legal representatives. 2. A complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short the '' Act'') came to be filed before the learned trial Magistrate on the allegation that it was a registered finance company with the Registrar of Companies, Jalandhar (Punjab) and the original accused had raised a loan from its branch at Mehre (Barsar). To pay the loan amount the original accused had issued a cheque No. 161266 dated 01.03.1999 for a sum of Rs. 1,65,000/- drawn at State Bank of Patiala, Mehre (Barsar). However, the same on presentation was dishonoured on 09.08.1999 with the remarks ''payment stopped by drawer''. Thereafter, legal notice was sent to the accused -Bali Ram who despite receipt of the same, failed to pay the sum, constraining the complainant/respondent to file a complaint under Section 138 of the Act. 3. The complainant in support of its case examined two witnesses and after closure of the evidence, the statement of the accused - Bali Ram under Section 313 Cr.P.C. was recorded wherein he acknowledged the fact that the complainant was a finance company and had advanced loan to various persons but denied that having availed the loan facilities from it but he had got his vehicle financed and taken money from the complainant, but the cheque in question had not been issued by him and rather his cheque book containing blank cheques had been lost and he had written a letter to the bank to stop payment because of the loss of cheque book. The receipt of the notice was acknowledged but he claimed that he was innocent. 4. The learned trial Court on the basis of evidence coming on record, allowed the complaint and convicted and sentenced the accused Bali Ram to undergo rigorous imprisonment for a period of 6 months and pay fine of Rs. 1,75,000/- and in case of default in payment of fine, further undergo rigorous imprisonment for a period of one month. On realization of the fine amount, the amount of the cheque i.e. Rs.1,65,000/- was ordered to be paid to the complainant. 5. 1,75,000/- and in case of default in payment of fine, further undergo rigorous imprisonment for a period of one month. On realization of the fine amount, the amount of the cheque i.e. Rs.1,65,000/- was ordered to be paid to the complainant. 5. Aggrieved by the order passed by the learned trial Magistrate, the complainant filed an appeal before the Additional Sessions Judge, Hamirpur. However, during the pendency of the said appeal, he died on 02.06.2008, as a result whereof the substantive sentence of imprisonment of six months and in default of payment of fine, rigorous imprisonment for one month got abated, however, the sentence of fine of Rs.1,75,000/- imposed upon the accused-Bali Ram was affirmed. 6. Noticeably, the legal representatives of the deceased Bali Ram had initially not come forward to seek impleadment and the appeal was disposed of in their absence by the learned Additional Sessions Judge, vide judgment dated 15.01.2009. However, the legal representatives thereafter approached this Court and vide order dated 04.04.2014, the judgment dated 15.01.2009 was set aside with the direction to hear the legal representatives of the deceased Bali Ram before passing of the orders as per law. 7. The case was thereafter taken up by the learned Additional Sessions Judge, who, as observed above, dismissed the same. 8. It is vehemently contended by Mr. Atul Jhingan, Advocate, that the order dated 20.03.2015 is total nonapplication of mind as it is ''cut'', ''copy'' and ''paste'' of the earlier judgment dated 15.01.2009 passed by the learned Additional Session Judge, which already stands set aside by this Court and in support of his submission he placed reliance on the copy of judgment annexed at pages 17 to 26 of the paper book. 9. However, what appears to have been overlooked by Mr. Jhingan is that the orders, as referred to above, are nothing but a copy of the same order that was passed by the learned Additional sessions Judge on 15.01.2009 and are not separate or distinct order, orders passed on different dates and, therefore, the contents of these orders would obviously be same. Jhingan is that the orders, as referred to above, are nothing but a copy of the same order that was passed by the learned Additional sessions Judge on 15.01.2009 and are not separate or distinct order, orders passed on different dates and, therefore, the contents of these orders would obviously be same. As a matter of fact, the copy of the earlier order is found in the records of the Court below at pages 47 to 54 and this order as noticed above was passed on the basis of the exparte evidence as the original accused Bali Ram had already died by that time and that was the precise reason why the order was set aside by this Court. Whereas on the other hand, in the order impugned herein, the language, contents and the reasons are entirely different and it would be no exaggeration to say that not even a single word in both these orders is common. 10. Notably, this is the only ground taken by the learned counsel for the petitioner for assailing the order passed by the learned Additional Sessions Judge. 11. However, in order to see, whether the Courts below have acted in accordance with law, it would be necessary to have a cursory look at the evidence led by the parties so as to see whether there is any perversity in findings so recorded. After all, even though the scope of criminal revision is extremely limited, yet the findings recorded by the Courts below can always be set aside on the ground of perversity. 12. The complainant examined one of its Director, Anand Gopal Bharti, who was authorised agent of the Company vide its resolution Ext.PD, which otherwise stands admitted by the petitioner in his statement under Section 313 Cr.P.C. He stepped into witness box as PW-1 and stated that a sum of Rs.1,75,000/- had been advanced to the petitioner to purchase a vehicle. The petitioner towards said liability had issued cheque Ext.PW2/A amounting to Rs. 1,65,000/- on 01.03.1999 in favour of the respondent. The cheque was presented for encashment but was dishonoured as the payment had been stopped. Thereafter notice Ext.PC of which Ext.PA is the postal receipt and Ext.PB is the acknowledgement was issued but the petitioner did not pay the amount. 13. 1,65,000/- on 01.03.1999 in favour of the respondent. The cheque was presented for encashment but was dishonoured as the payment had been stopped. Thereafter notice Ext.PC of which Ext.PA is the postal receipt and Ext.PB is the acknowledgement was issued but the petitioner did not pay the amount. 13. Pw2 Desh Rajan is the official from the State Bank of Patiala and proved that cheque Ext.PW2/A on being received from Punjab National Bank, Mehre for clearance could not be encashed as the payment has been stopped by the drawer and returned to the complainant vide memo Ext.PW-2/B. 14. The accused on the other hand, in his statement under Section 313 Cr.P.C., has denied the issuance of cheque Ext. PW-2/A in discharge of any liability to the complainant, but admitted his signature on the same. The admission on the part of the accused that the other evidence shows that cheque Ext.PW2/A was issued by him. 15. Sections 138 and 139 of the Negotiable Instruments Act provide that once such cheque has been signed and issued in favour of the holder, there is a statutory presumption that it is issued in discharge of legally enforceable debt or liability. This presumption is rebuttable one if issuer of the cheque is able to discharge the burden that it was issued for some other purpose like security of loan. However, in the present case, no such evidence has been led by the petitioner rather there is overwhelming evidence to show that the cheque in question had been issued in discharge of legally enforceable debt. 16. There is no perversity much less illegality in the order passed by the learned Courts below so as to warrants interference. As observed above, the High Court in exercise of its revisional jurisdiction cannot interfere with the order of the Magistrate unless it is perverse. Such order cannot be set aside merely on the ground that another view is possible. (See: Kishan Rao vs. Shankar Gowda , (2018) 8 SCC 165 .) 17. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed.