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2018 DIGILAW 912 (HP)

Bimla Sharma v. State of H. P.

2018-05-16

DHARAM CHAND CHAUDHARY

body2018
JUDGMENT : Dharam Chand Chaudhary, J. Judgment dated 28.06.2012, passed by learned Sessions Judge, Shimla in Criminal Appeal No. 46-S/2010 of 2010, whereby the judgment passed by learned Judicial Magistrate 1st Class, Court No.3, Shimla was affirmed, is under challenge in this Court on the grounds inter-alia that both Courts below have completely ignored the evidence available on record. The evidence available on record suggests the only inference that charge against the petitioner (hereinafter referred to as the 'accused’) was not proved beyond all reasonable doubt. Also that, inherent defects have been overlooked. The factum of respondent No.2 (hereinafter referred to as the 'complainant’) having failed to prove his accounts has also been erroneously overlooked. The improvements and discrepancies in the evidence produced by the complainant which go to the very root of the case have also been ignored without assigning any reasons. The evidence available on record rather has been misread and misappreciated. Both Courts below allegedly erred in appreciating the provisions of Section 139 of the Negotiable Instruments Act, as in the case in hand, the presumption to be drawn under the Section ibid, does not absolve the complainant from discharging the initial burden to prove the factum of any outstanding amount due to him from her. 2. Admittedly, the accused approached the complainant to execute the construction work of her house in the area of Kasumpati in the year 2003. He agreed to do so. On the completion of the construction work of the house, a sum of Rs.3,00,000/- was outstanding amount in his favour and payable by the accused. He requested her to clear his dues, but of no avail. Ultimately, on 3.9.2007, she issued a post dated (22.1.2008) cheque Ext. CW-1/A in the sum of Rs. 3,00,000/- of her accounts with State Bank of India, Shimla. The cheque was payable on and after 22.1.2008. When the accused failed to clear his dues on or before 22.1.2008, he presented the cheque Ext. CW-1/A for payment in the bank, however, the same was returned vide memo dated 22.1.2008, Ext. CW-1/C on the ground of insufficient funds. The complainant had served the accused with legal notice Ext. CW-1/D through registered post and also under the certificate of posting vide postal receipts Ext. CW-1/E to Ext. CW-1/A for payment in the bank, however, the same was returned vide memo dated 22.1.2008, Ext. CW-1/C on the ground of insufficient funds. The complainant had served the accused with legal notice Ext. CW-1/D through registered post and also under the certificate of posting vide postal receipts Ext. CW-1/E to Ext. CW-1/F. The accused when found to have avoided to receive the notice and also to clear the liability within the stipulated period, the complaint was instituted on 1st March, 2008. 3. Learned trial Judge on holding full trial and taking into consideration the material available on record has arrived at a conclusion that a sum of Rs. 3,00,000/- was payable by the accused to the complainant. She issued the cheque Ext. CW-1/A, however, the same got dishonoured due to insufficient funds. Also that, the complainant has discharged the initial burden upon him to prove that he was entitled to recover Rs.3,00,000/- from the accused and as she failed to pay the same as well as issued post dated cheque and as she failed to discharge the onus upon her by producing the evidence to prove otherwise that neither the amount in question was payable by her nor she issued the cheque has, therefore, concluded that she has committed an offence punishable under Section 138 of the Negotiable Instruments Act. Consequently, she has been convicted to undergo simple imprisonment for three months and also to pay Rs.3,50,000/- to the complainant as compensation qua the loss he suffered. 4. Learned lower appellate Court has affirmed the judgment passed by learned trial Court and maintained the conviction and sentence passed against the accused. 5. As pointed out at the out set, the legality and validity of the impugned judgment though has been questioned on several grounds, however, she failed to substantiate the same because neither she nor learned counsel representing her has put in appearance, not only today, but also on three dates previously fixed i.e. 12.04.2018, 08.03.2018 and 03.01.2018 in this matter. Therefore, on hearing learned counsel representing the respondent-complainant, this Court has proceeded to decide this petition finally. 6. At the out set, it is worth mentioning here that the concurrent findings recorded by both Courts below on appreciation of the facts and evidence available on record should normally do not call for interference by this Court in the exercise of its limited revisional jurisdiction. 6. At the out set, it is worth mentioning here that the concurrent findings recorded by both Courts below on appreciation of the facts and evidence available on record should normally do not call for interference by this Court in the exercise of its limited revisional jurisdiction. Such power, of course, can be exercised but only in a case of miscarriage of justice on account of illegality or irregularity committed by Courts below, if there is an error apparent on the face of the record. The present is not a case of this nature as both Courts below have neither committed any illegality or irregularity while allowing the complaint and recording the findings of conviction against the accused. The oral as well as documentary evidence produced by the complainant leads to the only conclusion that a sum of Rs.3,00,000/- was recoverable by him from the accused towards full and final payment of the work of her house executed by him. She has herself admitted that work of construction of her house was executed by the complainant and the estimated cost of the work was Rs.7,00,000-8,00,000/-. She also admits her outstanding liability towards the complainant while stating that his dues were cleared by her on 3.9.2007. As a matter of fact, cheque Ext. CW-1/A issued on 3.9.2007 was in dispute. It is so claimed by the complainant in the complaint. Although, she made an effort to dispute her signature and handwriting on Ext. CW-1/A and also filed an application under Section 73 of the Indian Evidence Act to forward the same to handwriting expert for comparison with her admitted signature and hand writing, yet the said application was also dismissed by learned trial Judge vide a speaking order dated 23.5.2009. This order has never been assailed by her including in the present petition. Meaning thereby that the cheque Ext. CW-1/A was post dated and issued by the accused alone and none-else under her signatures. The cheque was presented for encashment on 22.1.2008, as is apparent from the pay-in-slip Ext. CW-1/B. The same, however, was returned vide memo of the same date with the remarks “insufficient funds” vide memo Ext. CW-1/C. 7. If coming to the legal notice dated 23.1.2008, the same is also established beyond all reasonable doubt from the perusal of postal envelop Ext. CW-1/B. The same, however, was returned vide memo of the same date with the remarks “insufficient funds” vide memo Ext. CW-1/C. 7. If coming to the legal notice dated 23.1.2008, the same is also established beyond all reasonable doubt from the perusal of postal envelop Ext. CW-1/E, which contains an endorsement on its reverse : ^^izkIrdrkZ ?kj ij ughaa feykA ?kj esa lwpuk ns nh xà gSA sd/- 25.01.2008” 8. The certificate of posting is Ext. CW-1/F. The postal receipt qua the posting of the registered AD is Ext. CW-1/G. Such evidence available on record makes it crystal clear that the accused had due knowledge of issuance of legal notice Ext. CW-1/D, however, she avoided its receipt, deliberately and intentionally to defeat the just and legitimate claim of the complainant. The plea so raised in her defence that the disputed cheque Ext. CW-1/A was issued by her in the year 2004 as security and date of it is forged by the complainant on 22.1.2008 is also false because DW-2 P.N. Negi has proved the statement of the cheques she issued of her accounts Ext. DW-2/A and the disputed cheque, which bears No. 682262 was never issued by her as per this document in the year 2004. Otherwise also, even if the cheque is issued towards the security ultimately dishonoured, the same also constitutes an offence under Section 138 of the Negotiable Instruments Act as per ratio of the judgment of Hon’ble Apex Court in Sampelly Satyanarayana Rao V. Indian Renewable Energy Development Agency Limited, (2016) 10 SCC 458 . The relevant portion of this judgment is reproduced as under:- “10. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways (supra) with reference to the explanation to Section 138 of the Act and the expression “for discharge of any debt or other liability” occurring in Section 138 of the Act. We are of the view that the question whether a post-dated cheque is for “discharge of debt or liability” depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. 11. We are of the view that the question whether a post-dated cheque is for “discharge of debt or liability” depends on the nature of the transaction. If on the date of the cheque liability or debt exists or the amount has become legally recoverable, the Section is attracted and not otherwise. 11. Reference to the facts of the present case clearly shows that though the word “security” is used in clause 3.1 (iii) of the agreement, the said expression refers to the cheques being towards repayment of installments. The repayment becomes due under the agreement, the moment the loan is advanced and the installment falls due. It is undisputed that the loan was duly disbursed on 28th February, 2002 which was prior to the date of the cheques. Once the loan was disbursed and installments have fallen due on the date of the cheque as per the agreement, dishonour of such cheques would fall under Section 138 of the Act. The cheques undoubtedly represent the outstanding liability.” 9. In view of what has been said hereinabove, there is no merit in this petition and the same is accordingly dismissed. Pending application (s), if any, shall also stand disposed of.