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Himachal Pradesh High Court · body

2019 DIGILAW 1420 (HP)

Rakesh Awasthi v. Veena Langa

2019-09-20

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Instant Criminal Revision petition filed under Section 397 read with Section 482 of the Code of Criminal Procedure, is directed against the judgment, dated 6.7.2018, passed by learned Additional Sessions Judge (III), Kangra at Dharamshala, H.P., in Criminal Appeal No. 477/2013, affirming the judgment of conviction and order of sentence dated 15.3.2012 passed by learned Judicial Magistrate, 1st Class, Baijnath, District Kangra, H.P., in criminal complaint No. 41-III/10, whereby learned trial Court while holding petitioner-accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation of Rs.75,000/- to the complainant. 2. Precisely, the facts of the case as emerge from the record are that the respondent (hereinafter referred to as the 'complainant') instituted a complaint under Section 138 of the Negotiable Instrument Act (for short 'Act') in the Court of learned Judicial Magistrate, 1st Class, Baijnath, District Kangra, H.P., alleging therein that she leased out a Hotel in favour of the accused on a monthly rent of Rs. 60,800/- and accused with a view to discharge his aforesaid liability, issued cheque No.309879, dated 10.3.2010, amounting to Rs. 60,800/-. However, fact remains that aforesaid cheque was dishonoured on account of "insufficient funds" in the account of the accused. Immediately after receipt of the memo from the bank concerned, complainant served accused with statutory demand notice calling upon him to make the payment good within the period prescribed in the legal notice, but since accused failed to make good the payment within stipulated period, complainant was compelled to initiate proceedings under Section 138 of the Act. 3. Learned trial Court on the basis of the totality of evidence adduced on record by the respective parties, held accused guilty of having committed the offence punishable under Section 138 of the Act vide judgment dated 15.3.2012 and accordingly convicted and sentenced him, as per the description given hereinabove. 4. Being aggrieved and dissatisfied with the aforesaid judgment/order of conviction recorded by the learned trial Court, accused preferred an appeal in the Court of learned Additional Sessions Judge (III) Kangra at Dharamshala, H.P., which also came to be dismissed vide judgment dated 6.7.2018, as a consequence of which, judgment/order of conviction and sentence recorded by the learned trial Court came to be upheld. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after quashing and setting aside the impugned judgments of conviction recorded by learned Courts below. 5. On 7.2.2019, this Court while suspending the substantive sentence imposed by the learned Court below, directed the accused to deposit the entire amount of compensation, if not already deposited, within a period of six weeks, but fact remains that despite repeated opportunities, accused has not deposited the compensation amount till date. On 8th August, 2019, this Court having noticed flagrant violation of the orders passed by this Court, vacated the order dated 7.2.2019, reserving liberty to the complainant to get the judgment of trial Court executed, in accordance with law. 6. Mr. Adarsh K. Vashishta, learned counsel representing the petitioner states that since accused is not coming forward to impart instructions, this Court may decide the present petition on its own merit. 7. Having heard learned counsel representing the parties and perused the material available on record, this Court finds no force in the arguments of learned counsel representing the petitioner that Courts below while holding accused guilty of having committed the offence punishable under Section 138 of the Act have not appreciated the evidence in its right perspective, rather this Court finds that complainant has successfully proved on record that cheque Ex.CW1/A, dated 10.03.2010 was issued by the accused towards discharge of his lawful liability. It stands duly proved on record that cheque in question was dishonoured on account of "insufficient funds" in the account of the accused, who despite having received statutory demand notice failed to make the payment, compelling the complainant to institute the complaint under Section 138 of the Act. 8. Cw-3, Veena Langa (complainant) while deposing before the Court below has successfully proved the contents of the complaint by stating that she has given Hotel Shankar View on lease to the accused, who is running this Hotel named as DTIL. She further stated that rent to the tune of Rs. 60,800/- per month was agreed between the parties excluding TDS, but accused has failed to pay the rent since the building was taken on rent by him. She further stated that cheque Ex.CW1/A amounting to Rs. She further stated that rent to the tune of Rs. 60,800/- per month was agreed between the parties excluding TDS, but accused has failed to pay the rent since the building was taken on rent by him. She further stated that cheque Ex.CW1/A amounting to Rs. 60,800/- was handed over to her by the accused on 10.3.2010 with a view to discharge his liability towards rent, but fact remains that said cheque on its presentation was dishonoured vide memos Ex.CW1/B & C. Immediately after receipt of aforesaid memos, she served demand notice through her counsel, which is Ex.CW1/D, postal receipt Ex.CW1/E and acknowledgment Ex.CW1/F. She also placed on record memorandum issued by the bank Ex.CW1/C and the receipt pertaining to the deposit of cheque in question Ex.CW1/B. She also admitted that she has filed three cases against the accused. In her cross-examination, she specifically denied the suggestion put to her that no lease deed was executed by the accused. She admitted her signatures on the receipt memo mark DX at its point D.4 and admitted that in pursuance of the said receipt, she had received sum of Rs. 35,800/- on 7.1.2010. She also admitted that she had received rent in the month of October, 2009 and she had instituted the complaint on 26.6.2010. In a answer to the Court question "whether she had moved complaint Ex.D-1 after receipt of Rs. 35,800/- on 7.1.2010", complainant replied in affirmative, but during her further cross-examination she categorically denied that she had instituted false complaint against the accused. She categorically denied the suggestion put to her that cheque in question was issued by the accused as a security. She further stated that her husband usually issues the receipts pertaining to the receipt of rent and she appends her signatures thereon. While admitting that cheque pertaining to Rs. 35,800/-was not returned event after receipt, complainant categorically denied that amount of income tax to the tune of Rs. 1, 73,000/- was paid by the accused. 9. Cw-2, Rakeshwar Singh COT PNB stated that cheque book with respect to cheque No.309851 to 309900 was issued by PNB, Baijnath in favour of Shesh Awasthi Memorial and copy of the said cheque book is Ex.CW1/A. 10. Cw-1, Dalip Kumar, Branch Manager, State Bank of Patiala, Paprola, also proved on record cheque No.309879 and stated that same was issued by PNB, Baijnath. Cw-1, Dalip Kumar, Branch Manager, State Bank of Patiala, Paprola, also proved on record cheque No.309879 and stated that same was issued by PNB, Baijnath. He stated that cheque issued by PNB was deposited with their bank by the complainant on 20.4.2010. The said cheque was sent for collection to PNB, Baijnath, but it was returned with memo having remarks "insufficient funds" in the account of the holder. 11. Dw-1, Sunny deposed that he is care taker of DTIL Hospital since 2005 and rent of the hospital is being paid by the accused regularly, but receipt of the said amount was not issued by the complainant till date. This witness in his cross-examination, expressed his ignorance with regard to the amount of rent, if any, paid by the accused, however he volunteered that the receipt obtained from the complainant was handed over to the accused. 12. Close security of the evidence led on record by the respective parties vis-a-vis stand taken by the accused while getting his statement recorded under Section 313 Cr.P.C., clearly reveals that there is no dispute, if any, inter se parties with regard to leasing out of the property in question and amount of rent settled inter se them. Similarly, there is no dispute with regard to issuance of cheque and signatures of the accused thereupon, rather accused in his statement recorded under Section 313 Cr.P.C., has categorically admitted the factum with regard to issuance of cheque as well as his signature. Accused made an attempt to carve out a case that cheque in question Ex. CW1/A was not towards rent, but same was issued as a security. Since, there is no dispute with regard to signatures of the accused on the cheque, there is presumption under Sections 118 and 139 of the Act in favour of the complainant being holder of cheque that the cheque was issued by the accused in favour of complainant in discharge of legally enforceable debt/liability. Onus is/was upon the accused to rebut the aforesaid presumption. 13. In the case at hand, accused with a view to rebut aforesaid presumption examined DW-1, Sunny, who though stated that since 2005 rent of the hospital is being paid by the accused regularly, but he was unable to produce any receipt. Onus is/was upon the accused to rebut the aforesaid presumption. 13. In the case at hand, accused with a view to rebut aforesaid presumption examined DW-1, Sunny, who though stated that since 2005 rent of the hospital is being paid by the accused regularly, but he was unable to produce any receipt. Though, this witness categorically claimed that receipt obtained by him from the complainant was handed over to the accused, but neither he nor the accused produced on record such receipts. Since receipts, if any, allegedly issued by the complainant were in possession of the accused, it is not understood that why those receipts were not placed on record and as such, this Court is in agreement with Mr. Neeraj Gupta, learned Senior counsel that adverse inference is required to be drawn against the accused for with holding best evidence. In the case at hand, accused by putting suggestion to CW-3, Veena Langa (complainant) in her cross-examination that she had received payment of Rs.35,800/- on 7.1.2010, tried to make out a case that cheque in question, which was issued as security has been misused. However, cross-examination of complainant Veena Langa, if is read in its entirety, clearly suggests that complainant while fairly admitting that she had received rent in the month of December, 2009, fairly stated that she had instituted the complaint under Section 138 of the Act, but same was subsequently withdrawn. It clearly emerge from the record that complainant before receipt of aforesaid amount of Rs. 35,800/- had instituted the complainant Ex.D1 on 26.6.2010 in the competent Court of law, which she admittedly withdrew after receipt of aforesaid amount. 14. Precisely, the arguments of learned counsel representing the accused is that since cheque Ex.CW1/A was not returned to the accused by the complainant despite her having received sum of Rs. 35,800/-, it can be safely presumed that cheque in question, which is subject matter of the present case was also issued as a security cheque, but same was subsequently misused. 15. For the sake of arguments, if it is presumed that cheque in question was issued as a security cheque, but there is no evidence led on record by the accused that rent in cash was paid to the complainant qua the period in question when cheque Ex.CW1/A was issued in favour of the complainant, aforesaid defence taken by the accused cannot be accepted being probable. 16. 16. Under Section 139 of the Act there is presumption in favour of the holder of the cheque 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 meaning thereby there is presumption in favour of the holder of the cheque that the cheque has been given in discharge of legally enforceable debt or liability. 17. True, it is that presumption, as referred above, is rebuttable and to rebut such presumption accused can always raise probable defence either by leading positive evidence or by referring to material if any, adduced on record, but in the case at hand, accused has miserably failed to raise probable defence, much less sufficient defence to rebut the presumption available in favour of the complainant under Section 118 and 139 of the Act. In the case at hand, issuance of cheque as well as signatures thereupon of the accused are clearly admitted. Though, witness examined in defence by the accused claimed that entire rent was paid in cash, but he despite having categorically said that he is in possession of the receipt failed to place the same on record. At this stage, reliance is placed upon a judgment rendered by Hon'ble Apex Court in Hiten P. Dalal v. Bartender Nath Bannerji, (2001) 6 SCC 16 , wherein it has been held as under: "The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted......" 18. Section 139 of the Act provides that 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. 19. Section 139 of the Act provides that 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. 19. Hon'ble Apex Court in M/s Laxmi Dyechem vs. 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 upon the material submitted by the complainant. Needless to say, if the accused/drawer of cheque in question neither raises a probable defence nor is able to contest existence of a legally enforceable debt or liability, statutory presumption under S.139 of the Act regarding commission of the offence comes into play. It would be apt to reproduce following paras of judgment (supra) herein below: "23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan 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 138 can 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." 20. Recently, the Hon'ble Apex Court in Basalingappa vs. Mudibasappa, Cr. Appeal No. 636 of 2019 decided on 4.9.2019, having taken note of its earlier judgments has summarized the principles in the following manner: "23. Recently, the Hon'ble Apex Court in Basalingappa vs. Mudibasappa, Cr. Appeal No. 636 of 2019 decided on 4.9.2019, having taken note of its earlier judgments has summarized the principles in the following manner: "23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:- (i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 27 (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 28 139 imposed an evidentiary burden and not a persuasive burden. (v) It is not necessary for the accused to come in the witness box to support his defence. 24. Applying the preposition of law as noted above, in facts of the present case, it is clear that signature on cheque having been admitted, a presumption shall be raised under Section 139 that cheque was issued in discharge of debt or liability. The question to be looked into is as to whether any probable defence was raised by the accused." 21. In the case at hand, accused has been not able to rebut the statutory presumptions under Section 118 and 139 of the Act in favour of the holder of the cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by the learned Courts below. In the case at hand, accused has been not able to rebut the statutory presumptions under Section 118 and 139 of the Act in favour of the holder of the cheque i.e. complainant and as such, there appears to be no illegality or infirmity in the judgments/order of conviction and sentence passed by the learned Courts below. All the ingredients of S.138 of the Act stand duly proved in the case at hand, as such, this Court finds no occasion to interfere with the judgments/order of conviction and sentence recorded by learned Courts below, as such, same deserve to be upheld. 22. In view of above, the petition at hand is dismissed being devoid of merit. Judgments passed by learned Courts below are upheld. Accused is directed to surrender before the learned trial Court to serve the sentence imposed upon him, forthwith. Pending applications, if any, stand disposed of. Bail bonds, if any, furnished by the accused stand cancelled.