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2019 DIGILAW 1592 (HP)

Ram Chand v. Suresh Kumar

2019-10-24

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed against, the, impugned judgment, of, acquittal, pronounced, upon, RBT No.100/2 of 16/11, on 26.2.2018. The impugned judgment, is, rendered, vis-a-vis, a charge, appertaining, to, commission, of, an offence, punishable, under Section 138, of, the Negotiable Instruments Act, 1881 (hereinafter referred, to, as "the Act"). 2. A cheque, bearing Ext. C-1, and, carrying therein a sum of Rs. 5,00,000/-, was, issued by the respondent accused, vis-a-vis, the appellant-complainant. However, on its presentation, before the banker concerned, the latter, vide Ext. C-3, returned the afore cheque, and, declared it, as, dishonored, for, want of insufficient funds, in contemporaneity, vis-a-vis, its presentation, in, the accounts, of, the respondent-accused. 3. Section 139 "of the Act", leverages, a, statutory presumption, vis-a-vis, the holder, of, the apposite cheque, provisions whereof are 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." A reading of the afore extracted provisions, of, the Act, makes clear unfoldings, qua, the holder, of, the cheque rather holding it, in discharge of, a valid or an enforceable contract, or, other legal liability, inter-se the appellant complainant, and, the, respondent-accused. However, the afore statutory presumption leveraged, vis-a-vis, the complainant, or, the holder, in, due course, vis-a-vis, the apposite cheque, rather, is, a rebutable presumption, and, upon adduction, of, apt cogent evidence, or, through suggestion(s) being meted to the complainant, or, to the latters' witnesses, the, afore presumption becoming rebuttable or rebutted. 4. A reading of the cross-examination, of, the complainant, unfolds qua his meteing, affirmative answers, to, affirmative suggestions, qua, on 10.9.2011, his drawing, a, sum of Rs. 3,50,000/-, from, the cashier, of, the company/society concerned, and, the remaining sum, of, Rs. 50,000/-, being defrayed, in cash to the respondent-accused. 4. A reading of the cross-examination, of, the complainant, unfolds qua his meteing, affirmative answers, to, affirmative suggestions, qua, on 10.9.2011, his drawing, a, sum of Rs. 3,50,000/-, from, the cashier, of, the company/society concerned, and, the remaining sum, of, Rs. 50,000/-, being defrayed, in cash to the respondent-accused. The effect, of, the afore meteing, of, affirmative answers, vis-a-vis, affirmative therewith suggestions, is, hence, an inference becoming fostered qua, the total of the afore defrayed sums, rather bearing visible compatibility, vis-a-vis, the cheque amount, (i) yet, thereafter, the counsel for the respondent-accused, had, during the course, of, his cross-examining CW-3, meted suggestions to him, qua, his failing to issue receipt(s), vis-a-vis, his liquidating, the, afore sums of money, to, the respondent-accused, and, thereto also, he, meted an affirmative answer. However, from the afore, no conclusion can be garnered, vis-a-vis, the amount, borne in the dishonored negotiable instrument, remaining undefrayed, to the respondent-accused, nor, it can be concluded, qua there existing no legally enforceable, or, any legally subsisting liability, inter-se both, as, thereafter he unrebuttingly clarifies, vis-a-vis, the, respondent-accused taking, a, personal loan, only, for two days. The ensuing effect, of, the afore, is, qua the amount, borne in the negotiable instrument, becoming issued, upon, the afore borrowings, being made by the respondent-accused, from, the appellant-complainant, (ii) and, fortification, vis-a-vis, the afore garnered inference, does inevitably emerge, from, CW-3, during his cross-examination, rather acquiescing, to, a suggestion, qua in contemporaneity, vis-a-vis, the, disbursement of the loan amount, by him, vis-a-vis, the, respondent, an, agreement becoming prepared, (iii) yet, when the complainant, has, thereafter also un-rebuttingly clarified, that the afore agreement, was torn, given the respondent-accused, handing over to him, a cheque, carrying therein, the sums, borrowed from him, by the respondent-accused, hence concomitant thereof effects, (iv) are, the, issuance of Ext. C-1, being, a, sequel of a validly enforceable debt, rather becoming obtained from the complainant-appellant, by, the respondent-accused. Conspicously, all the afore effect(s) become untenably over-looked, hence by the learned trial Judge. C-1, being, a, sequel of a validly enforceable debt, rather becoming obtained from the complainant-appellant, by, the respondent-accused. Conspicously, all the afore effect(s) become untenably over-looked, hence by the learned trial Judge. Furthermore, with the defence espousing qua the cheque becoming issued, by the respondent-accused, vis-a-vis, one Dhani Ram, and, when the latter remained unexamined, as a witness, for, securing the defences' afore espousal, vis-a-vis, the complainant illegally possessing, the, apposite cheque, though, issued rather by one Dhani Ram, (v) thereupon also, with, the afore defence becoming staggered, also begets, an, inevitable inference qua, the, apt issuance becoming acquiesced by, the, accused. 5. Importantly, all the scribing in words, and, figures, in, Ext. C-1, remained uncontested, (a) thereupon with all, the, writings therein, in, words, and, figures, hence being concludable, to be, in the hands, of, the respondent accused, (b) and, with the complainant, being the Managing Director, of, the company/society concerned, qua, which, the, dishonored of negotiable instrument hence stood issued, (c) thereupon bearing the afore factum(s) in mind, along with, the factum qua, the, sums, embodied in the negotiable instrument, becoming issued, from the funds of the company, hence evidently helmed by the appellant-complainant, as its, Managing Director, (d) thereupon the afore capacity, per-se enabled, the, complainant rather for ensuring realization, from, the respondent accused, the borrowings made by the latter, from, the funds of the company concerned, hence, to, recompense, the, apposite depleted funds, and, to, also hold the requisite authorization, to, institute, the, complaint, (e) and, also the issuance of the cheque, in the name of the complainant, and, his being described therein, as, a, Managing Director, does fully authorize, him, to, for, realizing the sums borne therein, from, the respondent-accused, to, institute, the, complaint, reiteratedly theirs comprising, the, sums of money, borrowed from, the, company. 6. In view of the above, I find merit in this appeal, which is accordingly allowed. In sequel, the impugned judgment, is, quashed and set aside. Consequently, the accused is convicted, for, committing an offence, punishable under Section 138 of the Negotiable Instrument Act. Let the accused be produced before this Court, on 21.11.2019, for, his being heard, on, the quantum of sentence. Records be sent back forthwith.