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2019 DIGILAW 315 (HP)

Sumeet Kumar v. Ravi Kumar

2019-03-26

AJAY MOHAN GOEL

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JUDGMENT : Ajay Mohan Goel, J. This revision petition is directed against the judgment passed by the Court of learned Chief Judicial Magistrate, Solan, in Case No. 875-3 of 2014, dated 31.10.2017, vide which the petitioner has been convicted for commission of offence punishable under Section 138 of the Negotiable Instruments Act and he has been sentenced to undergo simple imprisonment for a period of six months and to pay compensation to the tune of Rs.60,000/- to the complainant and also against the judgment passed by the Court of learned Additional Sessions Judge-1, Solan, in Criminal Appeal No. 29-S/10 of 2017, dated 27.02.2018, vide which appeal filed by the petitioner against the judgment passed by the learned trial Court stood dismissed. 2. Before proceeding further, it is relevant to take note of the fact that on 29.05.2018, when notice was issued in this case, sentence imposed upon the petitioner was suspended subject to the petitioner furnishing personal bond to the tune of Rs.10,000/- with one surety in the like amount to the satisfaction of the learned trial Court as also depositing 25% of the cheque amount, within six weeks from the date of the order. As the petitioner did not comply with the directions issued by this Court, another opportunity was given on 27.12.2018 to deposit the balance compensation amount of Rs.40,000/- till 31.01.2019, however, it is a matter of record that till date said order has not been complied with nor steps have been taken by the petitioner to serve the respondent despite several opportunities. 3. On the request of learned Counsel for the petitioner, the matter is being disposed of on merit today. 4. Brief facts necessary for adjudication of the petition are as under:- Respondent/complainant (hereinafter referred to as 'complainant’) filed a complaint under Section 138 of the Negotiable Instruments Act on the ground that he was an businessman and also running an Electronic items shop under the name and style of M/s Bristo Agencies, near Bus Stand, Solan, HP and petitioner/accused (hereinafter referred to as 'accused’) was having cordial business relations with him. As per the complainant, in the month of October, 2013, accused approached him and sought financial help on the pretext that he is in heavy financial constraint and immediately required Rs.52,400/-, which the complainant advanced to the accused as friendly loan in view of good relations and urgency of the accused. As per the complainant, in the month of October, 2013, accused approached him and sought financial help on the pretext that he is in heavy financial constraint and immediately required Rs.52,400/-, which the complainant advanced to the accused as friendly loan in view of good relations and urgency of the accused. The accused had assured to repay the loan amount on or before May, 2014. In the month of May, 2014, when the complainant demanded back his money, the accused issued a cheque bearing No. 970590 dated 30.05.2014, drawn at Yes Bank, Solan, for the said amount in favour of the complainant. When the cheque was presented to the Bank, the same was dishonoured with remarks “drawers signature differs”. Immediately upon the receipt of the said information, complainant served the accused with a Legal Notice on 07.08.2014, by way of a registered post. Despite issuance of the said notice, accused failed to make good the amount of the cheque. In these circumstances, complainant invoked the provisions of Section 138 of the Negotiable Instruments Act. Complainant entered the witness as CW3 and tendered in evidence his affidavit Ext. CW3/A. He proved on record Legal Notice Ext. CW3/B, Postal Receipt Ext. CW3/C, Acknowledgment Ext. CW3/D, cheque returning memo Ext. CW3/E and Ext. CW3/F and also cheque Ext. CW2/B. In addition, complainant also examined Sh. Puneet Kumar, Assistant Manager of IDBI Bank, Solan as CW1, Sh. Lucky Gupta, Assistant Manager, Yes Bank, Solan as CW2 and his (complainant’s) wife Smt. Renu Gupta as CW4. 5. Issuance of Cheque Ext. CW2/A was admitted by the accused in his statement recorded under Section 313 of the Code of Criminal Procedure, however, his defence was that he had issued the same to the wife of the complainant and the complainant had misused the same. 6. Learned trial Court allowed the complaint and convicted the accused for commission of offence punishable under Section 138 of the Negotiable Instruments Act by holding that whereas the complainant had produced cogent evidence on record to prove his case beyond reasonable doubt, the accused has failed to bring on record any evidence to rebut the statutory presumption of law to prove his case. 7. In appeal, these findings were confirmed by the learned Appellate Court. 7. In appeal, these findings were confirmed by the learned Appellate Court. It held that whereas the complainant had complied with the statutory provisions of Section 138 of the Negotiable Instruments Act, the accused had failed to prove any cogent evidence on record to belie the case of the complainant. Learned Appellate Court took note of the provisions of Section 139 of the Act that unless contrary is proved, it shall be presumed that holder of the cheque has received the same in discharge of whole or part of any debt or liability. 8. Feeling aggrieved by the said judgments passed by both the learned Courts below, the accused has failed this petition. 9. Having heard learned Counsel for the petitioner at a considerable length and perused the impugned judgments as also the record of the case, in my considered view, there is no infirmity with the judgment of conviction passed against the accused by the learned trial Court as confirmed by learned Appellate Court. 10. In the present case, complainant approached the Court aggrieved by dishonouring of a cheque issued in his favour by the accused, which as per the complainant, was issued to him by the accused on account of a debt due to him from the accused. To satisfy the ingredients of Section 138 of the Negotiable Instruments Act, complainant duly proved on record issuance of the cheque by the accused, its being dishonoured on presentation to the Bank, issuance of statutory Legal Notice by the complainant to the accused, non-payment of the cheque amount by the accused to the complainant despite receipt of the said notice. 11. It is a matter of record that the factum of issuance of the cheque has not been disputed by the accused. His defence was that he had given the cheque to wife of the complainant and the same has been misused by him. Except this bald assertion of the accused, there is nothing placed on record by him to substantiate this fact. It is not his case that on account of cheque being misused or abused either by wife of complainant or the present complainant, he either lodged any complaint or took recourse to remedies available to him in law or have replied the Legal Notice sent by the complainant to him calling upon him to make the payment of cheque amount within the statutory period. Onus lay heavily upon the accused to belie the case of the complainant once the complainant had satisfied all the ingredients of Section 138 of the Negotiable Instruments Act. Fact of the matter is that he has not been able to belie the case of the complainant and therefore, in view of presumption envisaged under Section 139 of the Negotiable Instruments Act, both the learned Court below have rightly held that the petitioner was guilty of having committed an offence punishable Section 138 of the Negotiable Instruments Act. Said findings returned by learned Courts below are duly borne out from the record of the case and during the course of arguments, learned Counsel for the petitioner could not convince the Court to the contrary. Therefore, as this Court does not finds any infirmity with the judgments passed by learned Courts below, this revision petition being devoid of any merit is dismissed. Pending miscellaneous application (s), if any also stand disposed of accordingly.