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Himachal Pradesh High Court · body

2019 DIGILAW 1625 (HP)

Pawan Kumar v. Roopan Devi

2019-10-30

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Instant criminal revision petition filed under S.397 read with S.401 CrPC is directed against judgment dated 27.5.2016 passed by learned Sessions Judge, Bilaspur, Himachal Pradesh in Crl. Appeal No. 05/10 of 2015, affirming the judgment of conviction and sentence dated 19.5.2015 passed by learned Judicial Magistrate 1st Class, Court No.2, Ghumarwin, District Bilaspur, Himachal Pradesh in Cr. Case No. 26/2 of 2012, whereby learned trial Court, while holding petitioner-accused (herein after, 'accused') guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, 'Act') convicted and sentenced him to undergo simple imprisonment for a period of one year and to pay a compensation of Rs.2.00 Lakh to the respondent-complainant (hereinafter, 'complainant'). 2. Precisely, the facts of the case as emerge from the record are that complainant, instituted a complaint under S.138 of the Act in the court of learned Judicial Magistrate 1st Class, Court No.2, Ghumarwin, District Bilaspur, Himachal Pradesh, alleging therein that one Smt. Brahmi Devi widow of late Rupa Ram, executed an agreement to sell in her favour qua land measuring 1-6 Bigha for a total sale consideration of Rs.2.00 Lakh and in furtherance of said agreement, complainant paid a sum of Rs.2.00 Lakh to the above named Brahmi Devi. However later-on it transpired that Brahmi Devi had already sold her entire land to someone else and as such, matter came to be reported to the Police. Smt. Brahmi Devi alongwith accused Pawan Kumar and his real brother Ram Rattan requested the complainant not to report the matter to the Police and accused executed an agreement in favour of the complainant undertaking to pay Rs.2.00 Lakh to the complainant within a period of one month. However, the fact remains that the accused failed to pay aforesaid amount within the stipulated period in compliance to the affidavit sworn by him. Thereafter, matter came to be reported to the Police and accused issued cheque bearing No. 169299 dated 25.8.2012 (Ext. C-3) drawn on State Bank of Patiala, Morsinghi Branch, amounting to Rs.2.00 Lakh, in favour of the complainant but, on presentation, said cheque was dishonoured on account of insufficient funds in the account of the accused. Thereafter, matter came to be reported to the Police and accused issued cheque bearing No. 169299 dated 25.8.2012 (Ext. C-3) drawn on State Bank of Patiala, Morsinghi Branch, amounting to Rs.2.00 Lakh, in favour of the complainant but, on presentation, said cheque was dishonoured on account of insufficient funds in the account of the accused. Complainant after having received memo from the Bank concerned, served a legal notice to the accused calling upon him to make good the payment within the time stipulated in the notice but since he failed to make payment within the time frame stipulated in the notice, complainant was compelled to initiate proceedings against the accused under S.138 of the Act in the competent Court of law. 3. By way of evidence, complainant successfully proved on record issuance of cheque by accused and thereafter its return by the Bank concerned due to insufficient funds in the account of the accused. 4. To the contrary, accused, in his statement under S.313 CrPC, denied the case of the complainant in toto however, despite opportunity, he did not lead any evidence. 5. Learned trial Court, on the basis of the evidence led on record by the complainant, held accused guilty of having committed offence punishable under S.138 of the Act and accordingly, convicted and sentenced the accused as per description given above. 6. Being aggrieved and dissatisfied with aforesaid judgment of conviction and sentence, accused preferred an appeal in the court of learned Sessions Judge, Bilaspur, who vide judgment dated 22.5.2016, dismissed the same, as a result of which, judgment of conviction and sentence passed by learned trial Court came to be upheld. In the aforesaid background, accused has approached this Court in the instant proceedings, seeking therein his acquittal after setting aside judgments of conviction and sentence passed by learned Courts below. 7. Before ascertaining the correctness of the impugned judgments of conviction and sentence passed by learned Courts below, it may be noticed that the case at hand came to be repeatedly adjourned at the request of learned counsel for the accused, who repeatedly informed this Court that his client is ready and willing to make settlement with the complainant. 7. Before ascertaining the correctness of the impugned judgments of conviction and sentence passed by learned Courts below, it may be noticed that the case at hand came to be repeatedly adjourned at the request of learned counsel for the accused, who repeatedly informed this Court that his client is ready and willing to make settlement with the complainant. On 19.11.2018, this Court, while recording statement of the accused to the extent that he would deposit the entire amount on or before 31.1.2019, specifically recorded in the order that in the event of failure on the part of the accused to comply with the order, he shall render himself liable for penal consequences as well as contempt of court proceedings. 8. On 25.2.2019, accused handed over a sum of Rs.25,000/- in cash to learned counsel for the complainant and prayed for time till 31.3.2019 to deposit the balance amount. Again on 1.4.2019, accused handed over another sum of Rs.45,000/- in cash to the complainant. This Court by way of indulgence, granted last opportunity till 15.4.2019, to make the balance payment. On 16.4.2019, accused again failed to make payment of balance amount and paid only Rs.40,000/-, as such, this Court directed the accused to remain present in Court on 7.5.2019. On 7.5.2019, this Court was informed by learned counsel for the accused that the accused could not come present due to death in his family but has sent Rs.30,000/- to be paid to the complainant. 9. On 9.7.2019, another sum of Rs.20,000/- was handed over to learned counsel for the complainant by learned counsel for the accused, who stated that remaining amount of Rs.1,10,000/- shall be deposited by the accused within two months in two installments. However, the fact remains that after passing of order dated 9.7.2019, accused has failed to deposit the remaining amount of Rs.1,10,000/- despite three opportunities. 10. Today, during proceedings of the case, learned counsel for the accused, while handing over Rs.19,000/- to learned counsel for the complainant, prayed that some more time may be granted to make payment, however, such request has been vehemently opposed by learned counsel for the complainant, who stated that despite there being repeated opportunities afforded to the accused, he has not deposited the entire amount as such, case may be heard and decided on its own merit. 11. 11. I have heard learned counsel for the parties and perused the material available on record. 12. Having heard learned counsel for the parties and perused the material available on record, vis-a-vis reasoning assigned in the impugned judgments of conviction and sentence passed by learned Courts below, this Court finds no illegality or infirmity in the same, rather, this Court is convinced and satisfied that both the learned Courts below have dealt with each and every aspect of the matter meticulously and there is hardly any scope left for this Court to interfere. 13. Evidence led on record by complainant, if read in its entirety, clearly suggests that the complainant has successfully proved on record that the accused firstly executed an affidavit (Ext. C-8) undertaking therein to make complete payment and when he failed to do so, he issued cheque amounting to Rs.2.00 Lakh (Ext. C-3). Complainant placed on record original cheque dated 25.8.2012(Ext. C-3), amounting to Rs.2.00 Lakh, memo Ext. C-2, perusal whereof clearly reveals that cheque was presented by complainant with HP State Co-operative Bank Limited, for encashment, however, the Bank concerned i.e. State Bank of Patiala, vide memo Ext. C-4, informed that the cheque stands dishonoured on account of insufficient funds in the account. Ext. C-5 is the legal notice, Ext. C-7 is the postal receipt, Ext. C-10 is the acknowledgement and Ext. C-6 is the affidavit of Smt. Brahmi Devi, perusal whereof clearly suggests that she had agreed to sell land to the complainant and in that regard, she had received Rs.2.00 Lakh from her. Ext. C-9, is the affidavit of Ram Rattan, whereby he alongwith accused as well as Brahmi Devi had agreed to return Rs.2.00 Lakh allegedly taken by Brahmi Devi towards sale consideration from the complainant. Complainant, while deposing before learned Court below, successfully proved aforesaid documents. She categorically stated that the cheque in question was given by accused to her as he (accused) was guarantor of Smt. Brahmi Devi. She also stated that the accused executed affidavit to this effect. She stated that Smt. Brahmi Devi failed to execute sale deed as per agreement after receipt of Rs.2.00 Lakh, whereafter, accused alongwith Brahmi Devi and Ram Rattan, executed affidavits undertaking to pay amount in question to the complainant. She also stated that the accused executed affidavit to this effect. She stated that Smt. Brahmi Devi failed to execute sale deed as per agreement after receipt of Rs.2.00 Lakh, whereafter, accused alongwith Brahmi Devi and Ram Rattan, executed affidavits undertaking to pay amount in question to the complainant. She further admitted that since the amount was not paid to her in terms of the affidavits executed by accused, Brahmi Devi and Ram Rattan, she was compelled to lodge complaint with the Police. She also stated in her cross-examination that the accused issued cheque in question in her favour but same was dishonoured on its presentation on account of insufficient funds in the account of the accused. 14. Cw-2 Rajender Thakur, Assistant Manager, State Cooperative Bank Limited, corroborated the case of the complainant that cheque was presented and dishonoured on account of insufficient funds. 15. Cw-4 M.M. Verma, Advocate admitted that he, in the capacity of a Notary Public, attested the affidavits of Brahmi Devi (Ext. C-6) Pawan Kumar (Ext. C-8) and Ram Rattan (Ext. C-9). 16. Accused in his statement under S.313 CrPC, specifically admitted that Brahmi Devi executed agreement to sell in favour of the complainant Smt. Roopan Devi, for sale consideration of Rs.2.00 Lakh and he was witness of the said agreement alongwith brother Ram Rattan. He also admitted execution of affidavit Ext. C-8 in favour of complainant, whereby he had agreed to pay Rs.2.00 Lakh within one month to the complainant. He stated that the cheque was not given to the complainant by him. Though the accused, in his statement under S.313 CrPC, denied the case of the complainant in toto, but careful perusal of cross-examination conducted upon complainant and other witnesses, clearly suggests that the accused made an attempt to carve out a case that cheque (Ext. C-3) was issued by him under pressure from the Police but, in this regard, no cogent and convincing evidence ever came to be led on record by the accused. Moreover, accused in his statement under S.313 CrPC, nowhere stated that the cheque was procured by complainant after creating police pressure. 17. Leaving everything aside, accused has nowhere disputed the issuance of cheque in question (Ext. C-3) as well as affidavit Ext. Moreover, accused in his statement under S.313 CrPC, nowhere stated that the cheque was procured by complainant after creating police pressure. 17. Leaving everything aside, accused has nowhere disputed the issuance of cheque in question (Ext. C-3) as well as affidavit Ext. C-8 executed by him as such, it can be safely inferred that the accused, who stood guarantor to Brahmi Devi, issued cheque of Rs.2.00 Lakh to the complainant. There is no evidence on record worth the name that Brahmi Devi ever paid Rs.2.00 Lakh to the complainant and as such, accused, who had executed an affidavit undertaking therein to make complete payment of Rs.2.00 Lakh, issued cheque ex. C-3, but the same was subsequently dishonoured. 18. This Court sees no need to go into the question whether the accused was under any obligation to make payment especially when he had executed an affidavit undertaking therein to pay a sum of Rs.2.00 Lakh allegedly taken by Brahmi Devi from complainant. This Court finds no illegality in the findings returned by learned Courts below, that the accused was legally bound to pay Rs.2.00 Lakh to the complainant, as Smt. Brahmi Devi had made default. Moreover, accused failed to make payment despite his having received legal notice. He did not file any reply to the legal notice, meaning thereby that he accepted his liability but despite that failed to make payment. 19. In the totality of circumstances, this Court finds no reason to differ with the well reasoned judgments passed by both the learned Courts below, especially when there is no positive evidence, if any, available on record suggestive of the fact that accused was able to rebut the presumption under Ss.118A and 139 of the Act available in favour of the complainant being holder of cheque. No doubt, aforesaid presumption available under Ss.118A and 139 of the Act is rebuttable but evidence available on record, clearly reveals that the accused was not able to raise reasonable and probable defence that the cheque in question was not issued by him, rather, he issued the cheque under police pressure. 20. S. 139 of the Act ibid, provides that unless contrary is proved, it shall be presumed that the holder of a cheque received the cheque of the nature referred to in S.138 for the discharge, in whole or in part, of any debt or other liability. 20. S. 139 of the Act ibid, provides that unless contrary is proved, it shall be presumed that the holder of a cheque received the cheque of the nature referred to in S.138 for the discharge, in whole or in part, of any debt or other liability. In the case at hand, if evidence led on record by complainant is scanned in its entirety, it clearly suggests that complainant successfully proved on record by leading cogent and convincing evidence that the accused issued cheque in the sum of Rs.2.00 Lakh in favour of the complainant, as per affidavit executed by him, whereby he agreed to pay sum of Rs.2.00 Lakh allegedly taken by Brahmi Devi from the complainant. 21. 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......" 22. S.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. 23. True it is that to rebut aforesaid presumption, accused can always raise probable defence either by leading positive evidence or by referring to material, if any, adduced, on record by the complainant, 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 Ss. 118 and 139 of the Act. 118 and 139 of the Act. Close scrutiny of material available on record compels this Court to agree with learned counsel for the complainant, that there is absolutely no evidence available on record to probabilise the defence so projected by accused that the cheque was issued as a security or same was procured under the pressure of the Police. Accused with a view to set up aforesaid plea was required to substantiate the same by leading cogent and convincing evidence but, in the case at hand, accused even during his statement under S.313 CrPC, has not denied the factum with regard to issuance of cheque, rather during cross-examination of complainant, made an attempt to prove that the cheque was given to the complainant under the pressure of the Police. Mere statement of the accused is not sufficient to prove that the cheque in question was issued under the pressure of the Police, rather the accused, with a view to rebut the presumption available in favour of the holder, is/was under obligation to prove by leading positive evidence that the cheque in question was procured by exerting Police pressure. Interestingly, in the case at hand, legal notice issued by complainant was never replied by the accused. 24. Accused, with a view to substantiate his aforesaid plea, stated that the cheque in question was issued by him under pressure exerted by the Police but, interestingly, the accused failed to lead any evidence in this behalf. Since there is no dispute, if any, with regard to issuance of cheque and accused failed to prove that the cheque was not issued in discharge of lawful liability, plea of the complainant that the cheque was issued in discharge of lawful liability, was rightly accepted to be correct by learned Courts below. 25. Hon'ble Apex Court in M/s Laxmi Dyechem vs. State of Gujarat, 2013 (1) RCR (Criminal) 260, 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. 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 [3] 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. 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. 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." 26. Learned counsel for the accused also argued that learned Courts below have failed to properly appreciate the other defence raised by the accused that the complainant had no capacity to lend the money. While placing reliance upon recent judgment rendered by Hon'ble Apex Court in Basalingappa vs. Mudibasappa, Cr. Learned counsel for the accused also argued that learned Courts below have failed to properly appreciate the other defence raised by the accused that the complainant had no capacity to lend the money. While placing reliance upon recent judgment rendered by Hon'ble Apex Court in Basalingappa vs. Mudibasappa, Cr. Appeal No. 636 of 2019 decided on 4.9.2019, learned counsel for the accused further argued that once probable defence with regard to capacity of complainant to lend money was raised by the accused, onus was upon the complainant to prove that he had sufficient money to lend. 27. In the aforesaid judgment, Hon'ble Apex Court, reiterated that S.139 of the Act is an example of a reverse onus and the test of proportionality should guide the construction and interpretation of reverse onus clauses on the defendant-accused and the defendant accused cannot be expected to discharge an unduly high standard of proof. In the aforesaid judgment, Hon'ble Apex Court having taken note of judgments passed by their lordships on earlier occasions, 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. (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." 28. Hon'ble Apex Court, in the case before their lordships, while applying principle of law as discussed herein above, observed that when signatures on cheque stand admitted, a presumption shall be raised under S.139 that the cheque was issued in discharge of a debt or liability, but such presumption is rebuttable, if some probable defence is raised by the accused. Since in the case before Hon'ble Apex Court, complainant during his cross-examination, failed to give satisfactory reply qua his financial capacity to pay Rs.6.00 Lakh, Hon'ble Apex Court came to be convinced that probable defence of accused has been raised, which shifted the burden on the complainant to prove his financial capacity and other facts. 29. In the case at hand, probable defence with regard to procurement of cheque by creating Police pressure appears to have been taken very casually because, if statement of the accused recorded under S.313 CrPC is read in its entirety, it is/was none of the case of the accused that he issued cheque under Police pressure, but even if such defence is tested on the touchstone of the evidence led on record by respective parties, same deserves outright rejection. In the case at hand, careful perusal of the complaint filed by complainant under S.138 clearly suggests that she set up a case that she paid Rs.2.00 Lakh to Brahmi Devi in lieu of agreement to sell but when she failed to execute the sale deed, affidavits came to be sworn in by Brahmi Devi, Pawan Kumar and Ram Rattan, to the effect that they would pay Rs.2.00 Lakh to the complainant. No suggestion worth the name ever came to be put to the complainant in her cross-examination that the cheque was issued under the pressure of the Police and accused had never executed affidavit undertaking therein to pay sum of Rs.2.00 Lakh. 30. In the case at hand, accused has not been able to rebut the statutory presumption under Ss.118 and 139 of the Act in favour of holder of 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 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. 31. 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 her, forthwith. Pending applications, if any, stand disposed of. Bail bonds, if any, furnished by the accused stand cancelled.