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2019 DIGILAW 299 (HP)

Dinesh Chopra v. Giri Raj

2019-03-19

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. - By way of this petition, petitioner-accused has assailed the judgment passed by the Court of learned Sessions Judge, Kullu, in Criminal Appeal No. 49 of 2015 dated 24.01.2018, whereby learned Appellate Court has confirmed the judgment of conviction passed against the petitioner-accused by the Court of learned Judicial Magistrate 1st Class, Manali, District Kullu in Criminal Case 1 Whether reporters of the local papers may be allowed to see the judgment? No. 167-I/2012//I-III/13 dated 27.08.2015, whereby learned Trial Court convicted the petitioner-accused for commission of offence punishable under Section 138 of the Negotiable of Instruments Act (in short ''the Act'') and sentenced him to undergo simple imprisonment for a period of one year and also awarded complainant (Giri Raj) a lump-sum compensation to the tune of Rs.2,70,000-/. 2. Brief facts necessary for adjudication of the petition are as under. Respondent-complainant (hereinafter referred to as ''the complainant'') filed a complaint against the petitioner-accused (hereinafter referred to as ''the accused'') under Section 138 of the Act alleging that accused had borrowed a sum of Rs.2,00,000/- from the complainant for his domestic need and in discharge of said liability, accused had handed over cheque bearing No. 006584 dated 09.04.2012 for an amount of Rs.2,00,000/- drawn upon Bank of India, Branch Manali, in favour of the complainant. 3. On presentation, said cheque was dishonored vide Memo dated 21.04.2012 with remarks "Funds Insufficient". Complainant thereafter issued a Legal Notice dated 26.04.2012 and despite receiving the same, no payment was made by the petitioner-accused. 4. Feeling aggrieved, complainant invoked the provision of Section 138 of the Negotiable Instruments Act. Learned Trial Court held that issuance of cheque stood proved as accused did not dispute his signature upon the same. It further held that dishonoring of the cheque was duly proved by the complainant along with the statutory notice, which he got issued to the respondent. 5. Learned Trial Court also held that despite opportunities, no defence was led by the accused. In his statement under Section 313 of the Criminal Procedure of Code, accused had simply denied the case of the complainant by stating that the cheque was given as security for having borrowed an amount of Rs.50,000/- from the complainant which already stood paid to the complainant. In his statement under Section 313 of the Criminal Procedure of Code, accused had simply denied the case of the complainant by stating that the cheque was given as security for having borrowed an amount of Rs.50,000/- from the complainant which already stood paid to the complainant. Learned Court held that neither any evidence to this effect was adduced by the accused nor in the course of cross-examination of the complainant any such suggestion was given. Learned Trial Court held that the accused had committed an offence punishable under Section 138 of the Act. 6. These findings were confirmed by learned Appellate Court by holding that burden of proof was upon the accused to show that the cheque in issue was not issued for any consideration and the same was issued as Security, as was the case pleaded by him, which burden the accused had miserably failed to discharge. Learned Appellate Court also held that no evidence was led by the accused to prove that the cheque was issued as Security and that accused had borrowed a sum of Rs.50,000/- from complainant which stood repaid by him. Learned Appellate Court held that as necessary ingredients for invoking penal provisions of Section 138 of Negotiable of Instruments Act stood proved, therefore, the plea of the accused that cheque was not issued in discharge of liability but was issued as security was not acceptable. 7. Feeling aggrieved the accused has filed this petition. 8. I have heard learned counsel for the parties and have also gone through the judgments passed by both learned Courts below. 9. Record demonstrates that complainant entered into witness box as CW-I and he proved on record the cheque issued in his favour by the accused, which on presentation was dishonored. Complainant also proved on record Legal Notice which was issued to the accused after dishonoring of the cheque as also the acknowledgment of the accused having received the said notice. 9. Record demonstrates that complainant entered into witness box as CW-I and he proved on record the cheque issued in his favour by the accused, which on presentation was dishonored. Complainant also proved on record Legal Notice which was issued to the accused after dishonoring of the cheque as also the acknowledgment of the accused having received the said notice. Said Legal Notice is on record as Ext.CW1/E, whereas receipt is on the record as Ext.CW/1F, acknowledgement as Ext.CW1/G. The memo vide which the cheque was dishonored is on record as Ext.CW1/D. As per record, no defence evidence was led by the accused to substantiate his defence that the cheque was issued by him in favour of the complainant as security in lieu of borrowing a sum of Rs.50,000/- from the complainant which stood paid back to the complainant. Except the bald assertion made in the statement recorded under Section 313 of the Cr.P.C., there is nothing on record to prove this. Complainant having satisfied ingredients required to be proved for setting up the case under Section 138 of the Act, both the learned Courts below have rightly sentenced the petitioner with simple imprisonment of the term of one year and have correctly ordered him to pay compensation of an amount of Rs.2,70,000/. 10. Record demonstrates that complainant placed on record cogent and reliable evidence to prove his case. In the affidavit filed by the complainant, by way of evidence, he had specifically mentioned that accused had borrowed a sum of Rs.2,00,000/- and to discharge said liability, he issued cheque being bearing No. 006584 dated 09.04.2012 drawn upon Bank of India, Manali Branch in favour of the complainant. This cheque on being presented was dishonored with the remarks ''Funds insufficient''. Complainant served a Legal Notice dated 26.04.2012 posted on 27.04.2012 on the accused, calling upon the accused to make the payment of the cheque amount within fifteen days from the date of receipt of notice, but despite receipt of the said notice, accused failed to comply with the same. His cross-examination demonstrates that no suggestion was put to him by the accused that the cheque was issued by him to the complainant as a security and contents thereof stood forged by the complainant. His cross-examination demonstrates that no suggestion was put to him by the accused that the cheque was issued by him to the complainant as a security and contents thereof stood forged by the complainant. That being so, in view of the evidence on record produced by the complainant, both the learned Courts below have correctly returned the findings in favour of the complainant and against the accused. Neither there is any illegality in the judgments passed by learned Courts below nor they suffer from any jurisdictional error. Hence, as there is no merit in this petition, the same is dismissed. 11. Any miscellaneous application(s), if any, also stand disposed of.