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Himachal Pradesh High Court · body

2019 DIGILAW 1561 (HP)

N. C. Sareen v. Madan Vasudeva

2019-10-21

CHANDER BHUSAN BAROWALIA

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JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present criminal appeal has been maintained by the appellant-complainant (hereinafter to be called as “the complainant”) against the judgment dated 01.09.2009, passed by learned Judicial Magistrate First Class (1), Palampur, District Kangra, H.P. in Criminal Case No. 6-III/2008, whereby the complaint under Section 138 of the Negotiable Instruments Act (hereinafter to be called as “the Act”) has been dismissed. 2. Succinctly the facts giving rise to the present appeal are that the complainant filed a complaint against the respondent-accused (hereinafter to be called as “the accused”) under Section 138 of the Act, wherein it has been alleged the complainant has been running a shop under the name and style of General Sales Agency, Cinema Road, Palampur and the accused had purchased certain articles from the complainant. In order to make the payment and liquidate his legal liability, the accused issued cheque No. 401430, dated 01.10.2007 for Rs. 20,000/- drawn at State Bank of India, Palampur in favour of the complainant. After receipt of the cheque, the complainant presented the same in his bank, i.e. State Bank of India, however, the cheque was dishonoured by the banker of the accused, which was communicated to the complainant through memo, dated 12.10.2007. Thereafter, the complainant requested the accused to make the payment of cheque amount and when the accused did not respond to the request of the complainant, the complainant issued legal notice, dated 25.10.2007 to the accused. As per the complainant, the accused had intentionally and willfully issued the aforesaid cheque to the complainant knowing fully well that he has no such account with the banker, as such, he is liable to be punished under Section 138 of the Act. The learned trial Court after recording preliminary evidence, summoned the accused under Section 138 of the Act, on appearance of the accused in the Court, he was put with notice of accusation, the statement of the accused under Section 313 Cr.P.C. was recorded, wherein he denied all incriminating evidence led against him. In defence, the accused has examined two witnesses. 3. The learned trial Court, vide judgment dated 01.09.2009, dismissed the complaint filed by the complainant and acquitted the accused for the commission of offence punishable under Section 138 of the Act, hence the present appeal. 4. Mr. In defence, the accused has examined two witnesses. 3. The learned trial Court, vide judgment dated 01.09.2009, dismissed the complaint filed by the complainant and acquitted the accused for the commission of offence punishable under Section 138 of the Act, hence the present appeal. 4. Mr. Neeraj Gupta, learned Senior Counsel appearing on behalf of the appellant has argued that the learned trial Court has wrongly taken into consideration that there was no consideration and no legal liability existing. He has further argued that the cheque was issued in favour of the appellant/complainant for due consideration and the learned trial Court has failed to take this into consideration. 5. On the other hand, Mr. Manohar Lal Sharma, Advocate, for the respondent, has argued that the learned trial Court has passed the judgment of acquittal, as the bank account was closed long ago, there was no legal liability existing and the complainant has failed to discharge his obligation, as such, the judgment passed by learned trial Court needs no interference. In support of his contentions, Mr. Manohar Lal Sharma, Advocate, has placed reliance upon the decision rendered by Hon’ble Supreme Court in Basalingappa vs. Mudibasappa, (2019) 5 SCC 418 . 6. In order to appreciate the rival contentions of the parties, this Court has gone through the record carefully and in detail. 7. In order to prove his case, complainant N.C. Sareen has examined himself as CW-1 and deposed that the accused has purchased certain articles from him and in order to make the payment of the articles, he issued cheque Ext. C-2, for sum of Rs. 20,000/- which has been dishonoured by the banker of the accused for the reason “no such account with us” and sent the same back with Memo, Ext. C-3. He further deposed that he asked the accused qua dishonouring of the cheque and also asked him to make the payment of the cheque, but when the accused did not make the payment, legal notice Ext. C-4, was served upon him. In cross-examination, he admitted that he knows the accused for the last 10-15 years, however, he cannot say what at present he is doing. He further admitted that the accused was doing the business of feed. He feigned ignorance whether Vasudeva Sales Corporation was closed 5 years back and the same was declared insolvent. C-4, was served upon him. In cross-examination, he admitted that he knows the accused for the last 10-15 years, however, he cannot say what at present he is doing. He further admitted that the accused was doing the business of feed. He feigned ignorance whether Vasudeva Sales Corporation was closed 5 years back and the same was declared insolvent. He also feigned ignorance as to what he had sold to the accused and admitted that he has not produced bills of the articles sold by him to the accused. He deposed that he has shown the outstanding liability of accused in the return furnished by him with the Income Tax Department for the last year. He denied that he filled entries of cheque Ext. C-2 in the column of name and amount. He also denied that cheque pertains to the year 1994-95. 8. CW-2, Shakti Chand, Record Keeper of the bank proved the cheque, Ext. C-2 with memo Ext. C-3 and deposed that the same was returned with the endorsement of “No such account.” 9. On the other hand, the accused in his defence has examined Krishan Lal, Inspector Income Tax Department, as DW-1, who proved the copy of creditors list of the complainant, Ext. DW-1/A, copies of statements, Ext. DW-1/B and Ext. DW-1/C and copy of debtors list, Ext. DW-1/D. DW-2, Shakti Chand, proved the certificate, Ext. DW-2/A, issued by bank. 10. The case of the complainant is that since he has produced on record the cheque, Ext. C-2, dishonoured alongwith endorsement “that no such account exists” which is clear from memo, Ext. C-3 and demanded the aforesaid cheque amount from the accused vide notice, Ext. C-4, postal receipt of which is Ext. C- 5, acknowledgment is Ext. C-6, but the accused had not paid the amount, as such, the accused has committed an offence under Section 138 of the Act and is liable to be punished. Conversely, as per the accused, the complainant has failed to prove on record that there was any business transactions between the complainant and the accused and the accused had purchased the articles from the complainant. The complainant has also failed to prove on record that the said cheque was issued towards legally enforceable debt and the complaint of the complainant is false and frivolous. 11. The complainant has also failed to prove on record that the said cheque was issued towards legally enforceable debt and the complaint of the complainant is false and frivolous. 11. From the evidence on record, there is nothing to prove any business transaction took place between the complainant and the accused or the accused had purchased articles from the complainant and in order to liquidate his legal liability, he issued cheque to the complainant, except the statement of the complainant. The statement of the complainant shows that he has deliberately not produced his books of account in order to prove that as to what articles were sold by him to the accused at the time of issuance of cheque, rather the complainant in his cross-examination has deposed that he does not remember if the accused issued cheque towards the payment of goods. He categorically admitted in his cross-examination that whenever any person purchases any article from his, he uses to issue bill in his/her favour. The complainant has also stated in his statement that cheque, Ext. C-2 has been received by him from Vasudeva Sales Corporation through its Proprietor, i.e. the accused and had the complainant knew that the accused is working or is Proprietor of Vasudeva Sales Corporation, he could not have accepted the cheque from the aforesaid corporation and since the complainant has stated that he sold the articles to the present accused and accepting cheque on behalf of Vasudeva Sales Corporation, thorugh its Proprietor, itself shows that said cheque was not issued towards legally enforceable debt by the accused. 12. Further, the complainant in his affidavit has stated that the accused purchased certain articles from him and in order to make the payment of the articles, he issued cheque to him so as to liquidate his legal liability. However, the complainant in his cross-examination has deposed that the accused purchased the articles from him 2-3 years prior to the issuance of cheque, which shows that no such articles were purchased by the accused on 01.10.2007 and the statement of the complainant is contradictory to the contents of the affidavit. However, the complainant in his cross-examination has deposed that the accused purchased the articles from him 2-3 years prior to the issuance of cheque, which shows that no such articles were purchased by the accused on 01.10.2007 and the statement of the complainant is contradictory to the contents of the affidavit. Therefore, it is apparently clear from the evidence which has come on record that the complainant has failed to prove on record that the cheque was issued by the accused towards legally enforceable debt due from the accused in business transactions, not only this, the complainant could also not produce/prove any account book or bills qua the sale of goods, if any, by him to the accused on 01.10.2007. 13. So, in view of the law settled by Hon’ble Supreme Court in Basalingappa vs. Mudibasappa, (2019) 5 SCC 418 and what has been discussed hereinabove, this Court finds that the findings arrived at by learned trial Court are without any illegality and need no interference. 14. In the given facts and circumstances of the case, the present appeal, which sans merit, deserves dismissal and is accordingly dismissed alongwith pending applications, if any.