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2018 DIGILAW 641 (HP)

Sohan Lal v. Indira Devi

2018-04-16

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT : Chander Bhusan Barowalia, J. 1. The present revision petition is maintained by the petitioner/accused/convict (hereinafter referred to as “the accused”) under Sections 397 and 401 Cr.P.C. against the judgment, dated 02.03.2017, passed by the learned Additional Sessions Judge (II), Mandi, District Mandi, H.P. whereby the appeal filed by the accused against the judgment, dated 22.07.2017, of learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, H.P. was dismissed and the conviction of the accused was upheld. 2. The brief facts, giving rise to the present revision petition, can succinctly be summarized as under: The accused and the complainant had affable relations and during January, 2014, accused borrowed Rs. 1,00,000/- (rupees one lac) from the complainant for his domestic needs and for discharging his liabilities. The said sum was to be returned within a reasonable time, but the accused did not return the same and ultimately he issued cheque, dated 17.08.2014, which was drawn in bank of Baroda, Branch Mandi. The cheque was presented for encashment by the complainant in Himachal Gramin Bank and the same was dishonoured for want of sufficient funds. Thus, the complainant issued legal notice, dated 17.11.2014, which the accused received and chosen not to reply. Thus, the complainant filed a complaint in the learned Trial Court, in which the accused was found guilt under Section 138 of the Negotiable Instruments Act and he was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay compensation of Rs. 1,00,000/- (rupees one lac) and in default of payment of fine he was further ordered to undergo simple imprisonment for a month. The accused laid challenge to the above judgment of conviction rendered by the learned Trial Court by filing an appeal in the learned Lower Appellate Court, but the same was dismissed and the judgment of the learned Trial Court was upheld, hence the present revision petition. 3. The accused/petitioner feeling aggrieved and dissatisfied with the impugned judgment of the learned Appellate Court preferred the present revision petition. 4. Heard. The learned counsel for the petitioner has argued that the learned Courts below have failed to take into consideration the fact that the cheque was not issued for consideration. 3. The accused/petitioner feeling aggrieved and dissatisfied with the impugned judgment of the learned Appellate Court preferred the present revision petition. 4. Heard. The learned counsel for the petitioner has argued that the learned Courts below have failed to take into consideration the fact that the cheque was not issued for consideration. The cheque was issued by the petitioner as a security, but the learned Courts below without considering the fact that the cheque was not issued for consideration and the presumption is rebutable, has ignored the vital evidence on record and convicted the petitioner, so the judgment of conviction passed by the learned Trial Court is liable to set aside. She has further argued that judgment of the learned Lower Appellate Court, whereby the judgment of the learned Trial Court was upheld, is also required to be set aside. On the other hand, the learned counsel for respondent No. 1 has argued that the cheque was issued for consideration, as the petitioner, on the pretext that he will return the money to her as and when required, has taken the amount, which was collected by her from the ladies of self help group. He has further argued that the cheque was issued for consideration and the complainant has proved her case beyond the shadow of reasonable doubt, thus the learned Trial Court has convicted the petitioner in accordance with law and the learned Lower Appellate Court has rightly upheld the judgment of the learned Trial Court. Lastly, he has prayed that the revision petition is required to be dismissed. 5. In order to appreciate the rival contentions of the parties, I have gone through the record in detail. 6. As per the complainant, the accused borrowed Rs. 1,00,000/- (rupees one lac) in the month of January, 2014 for his domestic needs and to discharge his liabilities. The accused was to return the same within a reasonable time, but he could not return the amount, so he issued the present cheque, but when the cheque was presented for encashment with the banker, it was dishonored. Hence, the present complaint filed by the complainant. 7. In order to prove her case the complainant has examined herself as CW-1 and tendered her affidavit in evidence, i.e. Ex. CW-1/F. She has deposed that she was acquainted with the accused and the accused had borrowed Rs. Hence, the present complaint filed by the complainant. 7. In order to prove her case the complainant has examined herself as CW-1 and tendered her affidavit in evidence, i.e. Ex. CW-1/F. She has deposed that she was acquainted with the accused and the accused had borrowed Rs. 1,00,000/- (rupees one lac) from her for his domestic needs. She has further deposed that the accused assured to return the amount within six months. The accused issued Cheque No. 000005, dated 17.08.2014, Ex. CW-1/B, but the same was dishonored due to insufficient funds, vide memo, Ex. CW-1/B. Subsequently, she served legal notice, Ex. CW-1/C, upon the accused vide receipt, Ex. CW-1/D and its acknowledgement is Ex. CW-1/E. The complainant, in her cross-examination, has deposed that accused used to buy cow’s ghee from her and he used to come frequently. She denied that the cheque was issued as a security by the accused. The accused issued the cheque and told that she could get the money from the bank, but the cheque was dishonored. She has further deposed that she reported the matter to the police, but the police showed their inability to take action. 8. The complainant specifically denied that the cheque was issued as a security. The accused also did not choose to lead any evidence qua the fact that the cheque was issued as a security. In fact, there is nothing on record to conclude that the cheque was issued as a security. Thus, the issuance of cheque by the accused stands proved. So, there is presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued for consideration. The plea of the accused that the cheque was issued by him as a security and the same has been misused by the complainant has no force. The accused in order to strengthen and establish his plea also did not lead any evidence, so the presumption arises in favour of the complainant under Section 139 of the Negotiable Instruments Act. 9. After carefully considering the overall aspects of the case in hand and also the evidence, which has come on record, it is clear that the judgment of conviction passed by the learned Trial Court and upheld by the learned Lower Appellate Court needs no interference, as the complainant has proved her case conclusively and beyond the shadow of reasonable doubt. 10. 10. In view of the above, the petition, which sans merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands disposed of.