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2019 DIGILAW 329 (HP)

Mohan Verma @ Shillu v. B. m. Thakur

2019-03-28

AJAY MOHAN GOEL

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JUDGMENT Ajay Mohan Goel, J. (Oral) - This revision petition is directed against the judgment passed by the Court of learned Additional Chief Judicial Magistrate, Theog, in Case No. 254-3 of 2011, dated 28.10.2015, 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 two months and to pay compensation to the tune of 3,50,000/- to the complainant and also against the judgment passed by the Court of learned Additional Sessions Judge (CBI), Shimla, Circuit Court Theog, in Criminal Appeal No. 4-T/10 of 2016, dated 01.05.2017, 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 04.08.2017, 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 25,000/- with one surety in the like amount to the satisfaction of the learned trial Court within four weeks from the date of the order. On the said date, petitioner through Counsel had also stated before the Court that he was willing to deposit the entire amount of compensation within four weeks as also 15% of the cheque amount to have the matter compounded. As the petitioner did not comply with the directions issued by this Court, another opportunity was given on 15.09.2017 to do the needful within four weeks. 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. In these circumstances, the case was heard 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 agriculturist and also having an apple orchard and petitioner/accused (hereinafter referred to as ''accused'') was known to him. As per the complainant, accused had purchased standing apple crop from the complainant for a sum of 2,50,000/- and in order to discharge said liability, he issued a cheque dated 28.08.2011 for the said amount. As per the complainant, accused had purchased standing apple crop from the complainant for a sum of 2,50,000/- and in order to discharge said liability, he issued a cheque dated 28.08.2011 for the said amount. When the cheque was presented to the Bank, the same was dishonoured. Immediately upon the receipt of the said information, complainant issued a Legal Notice to the accused dated 21.10.2011, 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 CW2 and he produced on record Cheque Ext. C-2, Dishonour Memo Ext. C-3, Legal Notice Ext. C-4 and Postal Receipt Ext. C-5. In addition, one Shri Ashish Thakur, Special Power of Attorney of the complainant, through whom complainant had preferred the complaint, also appeared in the witness box as CW-2. The power of attorney was also produced on record as C-1. 5. Issuance of Cheque Ext. C-2 was admitted by the accused in his statement recorded under section 313 of the Code of Criminal Procedure, 1973 alongwith Dishonour Memo Ext. C-3 and receipt of Legal Notice Ext. C-4. Defence of the accused was that he had never issued any cheque to the complainant and the present cheque was issued to one Surender Verma, who 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. 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. 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, nonpayment 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 the signatures of the accused being on the cheque has not been disputed by him. His defence was that he had given the cheque to one Surender Verma which was 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 Surender Verma or the present complainant, he either lodged any complaint or took recourse to remedies available to him in law. 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. 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. 12. 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.