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Himachal Pradesh High Court · body

2019 DIGILAW 1147 (HP)

Bhoop Singh v. Soni Kumar

2019-08-13

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The instant appeal, stands directed, by the appellant/complainant, against, the judgment rendered by the learned Judicial Magistrate, 1st Class, Arki, District Solan, H.P. in complaint No. 251-3 of 2015, whereupon, he returned findings of acquittal, upon, the accused/convict, in respect of charges framed, under, Section 138, of, the Negotiable Instrument Act. 2. Briefly stated, the case of the complainant is that in the third week of August, 2019, the accused approached him for a financial help of Rs. 5,00,000/- for his personaluse. The complainant advanced a sum of Rs. 5,00,000/- to the accused on his assurance that he would return the same within one month. Thereafter on completion of one month, the accused in discharge of his aforementioned liability issued a cheque bearing No. 051632, dated 27.9.2015, amounting to Rs. 5,00,000/- drawn on an account maintained by him with Punjab National Bank, branch Darlaghat, Tehsil Arki, District Solan, in favour of the complainant with the promise that the same would be honoured on presentation. The complainant presented the said cheque for encashment in his bank i.e. Jogindra Central Co-operative Bank Limited, branch Darlaghat, Tehsil Arki, District Solan, on 1.10.2015, but the same was dishonoured due to insufficient of funds in the account of the accused vide dishonour memo dated 5.10.2015. Thereafter, a legal notice was sent by the complainant to the accused on 7.10.2015, requesting the accused to make payment of Rs. 5,00,000/- which notice was sent through RAD to the accused vide postal receipt and the same was served upon the accused on 13.10.2015. However, despite service of notice, the accused failed to make payment mentioned in the notice within the stipulated period, i.e. 15 days from the date of receipt of notice. Hence, the present complaint was filed against the accused. 3. On perusing the preliminary evidence, adduced by the complainant, the learned trial Court, took cognizance, against the accused, and, the accused was summoned. Notice of accusation, was put, to the accused, qua commission of an offence, under, Section 138 of the Negotiable Instruments Act, whereto he pleaded, not guilty, and claimed trial. The complainant in support, of, the complaint, examined himself, as, CW-1, and, closed his evidence. After closure of complainant's evidence, the statement of the accused, was recorded, under Section 313 of Cr. The complainant in support, of, the complaint, examined himself, as, CW-1, and, closed his evidence. After closure of complainant's evidence, the statement of the accused, was recorded, under Section 313 of Cr. P.C., wherein, the accused claimed innocence, and, pleaded false implication, in the case, however, did not lead defence evidence. 4. On an appraisal of evidence on record, the learned trial Court, recorded findings of acquittal upon the accused. 5. The complainant/appellant, is aggrieved, by the judgment of acquittal recorded by the learned trial Court. The learned Counsel appearing, for the appellant, has concertedly, and, vigorously contended qua the findings of acquittal recorded, by the learned trial Court standing, not, based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation, by it, of the material on record. Hence, he contends qua the findings of acquittal, being reversed, by this Court in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of conviction. 6. On the other hand, the learned counsel appearing for the respondent, has, with considerable force and vigour, contended that the findings of acquittal, recorded by the Court below, standing based, on a mature, and, balanced appreciation, by it, of evidence on record, and, theirs not necessitating interference, rather theirs meriting vindication. 7. This Court with the able assistance, of, the learned counsel(s) on either side, has, with studied care and incision, evaluated the entire evidence, on, record. 8. Cheque embodied in Ext. CW1/B,upon its presentation before the Bank concerned, hence for want of sufficient funds, thereat occurring, in, the accounts, of, the respondent, stood declined, to be honoured. The memos, issued by the Bank concerned, making, the requisite echoing(s), vis-`-vis, Ext. CW1/B, upon its presentation therebefore, it being declined to be honoured, for, wants thereat, of, sufficient funds, being borne, in the accounts, of, the respondent/accused, are respectively borne in Ext. CW1/C, and, in Ext.CW1/D. 9. The memos, issued by the Bank concerned, making, the requisite echoing(s), vis-`-vis, Ext. CW1/B, upon its presentation therebefore, it being declined to be honoured, for, wants thereat, of, sufficient funds, being borne, in the accounts, of, the respondent/accused, are respectively borne in Ext. CW1/C, and, in Ext.CW1/D. 9. Be that as it may, the respondent/accused, did not deny, qua hisreceiving the statutory notice, issued prior, to, the institution of the complaint, (i) nor he made any espousal, qua the complaint, constituted under Section 138 of the Negotiable Instrument Act, being a mis-recoursed remedy or it being, a, mis-constituted remedy (ii) rather arising from, qua despite, elapsing of 15 days, since the issuance, of, the statutory notice upon him, the apposite complaint, being instituted, before, the learned Judicial Magistrate concerned. 10. In aftermath, it is to be concluded qua the complaint instituted by the complainant, before, the learned Judicial Magistrate concerned, being an aptly recoursed remedy, (a) and, furtheronwards, when the respondent/accused also omits to rear any contest, vis-`-vis, his authoring, all the scribing(s) in words, and, figures, as stand borne thereon, nor when he has contested the authenticity, of, existence(s)/occurrence(s) thereon, of, his signatures besides obviously when he has not adduced any expert evidence, in concurrence therewith, (b) thereupon the invincible conclusion rather ensuing therefrom, is, qua all the scribings, in words, and, figures, occurring on Ext. CW1/B, being authored, by the respondent/accused, c) and also qua Ext.CW1/C carrying the authentic signatures, of, the respondent/accused. Moreover, the inevitable sequel therefrom, is qua, rather through, the statutory presumption, embodied, in Section 139 of the Negotiable Instrument Act, provisions whereof stand extracted hereinafter: "139. Presumption in favour of holder: It shall be presumed, 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, of any debt or other liability." the complainant hence being concluded, to be, obviously validly holding Ext. CW1/B, (d), and, also his being therefrom statutorily enabled, to, make a further espousal, qua the amount borne therein, being workable towards discharging(s), of, legally enforceable debts or liabilities, (e) thereupon it was imperative for the learned Judicial Magistrate 1st Class concerned, to proceed to record, an order, of conviction, upon, the respondent/accused. CW1/B, (d), and, also his being therefrom statutorily enabled, to, make a further espousal, qua the amount borne therein, being workable towards discharging(s), of, legally enforceable debts or liabilities, (e) thereupon it was imperative for the learned Judicial Magistrate 1st Class concerned, to proceed to record, an order, of conviction, upon, the respondent/accused. The afore statutory presumption wherefrom the afore enablement(s) accrue, vis-`-vis, the complainant, though is rebuttable, obviously, hence cogent rebuttal evidence, was enjoined to be adduced, by the respondent/accused, for, ensuring the making, of, a conclusion, qua (f) the afore presumption being dislodged, (g) no conclusivity being hence meteable thereto, (h) issuance of cheque, not, being towards any discharging(s), of, any legally enforceable debts or liabilities, (i) rather it being abused or misused, by the complainant, merely for harassing or humiliating, the, respondent/accused. However, a close scrutiny, of, the evidence on record, makes clear, and, unequivocal echoing(s), qua even, during, the course of the complainant, being subjected, to, an ordeal, of an exacting and rigorous cross-examination, (j) no striving(s) being made by the learned defence counsel, through, his meteing apposite suggestion(s), vis-`-vis, the complainants' evidence to hence, his therefrom endeavor, to, rebut the afore statutory presumption, embodied, in Section 139, of, the Negotiable Instrument Act. The sequel, of, the afore omission(s), is, qua the further ensuing corollary therefrom, being qua, the apt statutory presumption, remaining intact, and, also acquiring an aura, of, conclusivity, (k) and, thereupon, also, the learned Judicial Magistrate, 1st Class, was enjoined, to, make an, order of conviction, upon, the respondent/accused. Contrarily, the learned Magistrate, has not meted, the, apposite and, requisite deferments, qua the afore evidence existing, on record, rather has proceeded, to, on mere fallacious, and, pretextual reasons, make an order of acquittal, upon, the respondent/accused, and, the afore order, is, anvilled, upon (l) in contemporaneity, vis-`-vis, Ext. Contrarily, the learned Magistrate, has not meted, the, apposite and, requisite deferments, qua the afore evidence existing, on record, rather has proceeded, to, on mere fallacious, and, pretextual reasons, make an order of acquittal, upon, the respondent/accused, and, the afore order, is, anvilled, upon (l) in contemporaneity, vis-`-vis, Ext. CW1/B, no scribed documents being prepared, (m) hence, it, begetting a conclusion qua Ext.CW1/B, being not issued towards discharging(s), of any legally enforceable debt, or any contractual liability, interse the complainant and, the respondent/accused, (n) and obviously, therefrom it has made, a conclusion, that the apposite statutory presumption, embodied in Section 139 of the Act, also not working towards the holder of the cheque, rather it being dislodged (o) consequence whereof, is, the afore conclusion being dehors any cogent evidence, either in rebuttal nor through meteing, of, apposite suggestions, to the complainant, by the learned defence counsel, upon the latters' subjecting him, to, cross-examination, rather being adduced, (p) whereas reiteratedly the afore endeavors, rather comprised the apposite assays, for, being rather recoursed, for, dislodging the statutory presumption, of, truth, attracted, vis-`-vis, the holder, of, cheque Ext. CW1/B. Emphatically and reiteratedly, since the apposite discharging rebuttal evidence, for therethrough, the, vigor of statutory presumption, as working towards the complainant, being eroded, rather remained un-adduced, (q) thereupon the afore pretextual, and, fallacious reasons, assigned by the leaned trial Magistrate concerned, in his making an order of acquittal, are, un-meritworthy, (r) and are visibly beyond the domain, of, the provisions borne, in, Section 139, of, the Negotiable Instrument Act and are without any profound application, of, judicial mind, vis-`-vis, the afore. 11. For the reasons which have been recorded hereinabove, this Court holds, that the learned trial Court, has not appraised, the entire evidence, on record in a wholesome, and, harmonious manner apart therefrom, the analysis of the material, on record by the learned appellate Court, suffers, from a gross perversity or absurdity of mis-appreciation, and, non-appreciation, of, evidence on record. 12. There is merit in the appeal, and, the same is allowed. The impugned judgment is quashed and set aside. The accused/respondent be produced before this Court, for his being heard on quantum of sentence, on 26.8.2019. All pending application(s), if any, are also disposed of.