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2019 DIGILAW 351 (HP)

Geeta Ram v. Kishori Lal Sharma

2019-04-01

TARLOK SINGH CHAUHAN

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JUDGMENT Tarlok Singh Chauhan, J. - Aggrieved by the acquittal of the respondent in a case instituted under Section 138 of the Negotiable Instruments Act (for short the ''Act''), the appellant/complainant has filed the instant appeal on the ground that the findings recorded by the learned Court below are perverse. 2. In order to decide the question of perversity, certain minimal facts need to be noticed. 3. The appellant/complainant filed a complaint that the respondent was a contractor and had approached him for purchasing of land at Mohal Luharab, Tehsil and District Shimla, H.P. as at the relevant time he had been selling these plots. In lieu of sale consideration of Rs.5,00,000/- and for development of plot the amount was assessed at Rs.1,00,000/-, the respondent issued two cheques dated 01.09.2015 for Rs.3,00,000/- each in favour of the complainant. However, when they were presented for encashment, the same were dishonoured on the ground "exceeds arrangement". The appellant thereafter issued legal notice and when the payment was not made, he filed a complaint under Section 138 of the Act. 4. The learned trial Court on the basis of the material available on record, acquitted the respondent. 5. It is vehemently argued by Mr. J.R.Poswal, Advocate, learned counsel for the appellant that the findings recorded by the learned Court below were based on complete misreading and misappreciation of the statement of CW-1 and the documents i.e. cheques Ex.CW-1/A and CW-1/B, returning memos Ex.CW-1/C and CW-1/D, legal notices Ex.CW-1/E and Ex.CW-1/F and postal receipt Ex.CW-1/G. 6. On the other hand, learned counsel for the respondent Mr. Nitin Misra, would support the order by claiming that the same warrants no interference as it has been passed strictly in accordance with law. I have heard the learned counsel for the parties and have also gone through the material placed on record. 7. On the other hand, learned counsel for the respondent Mr. Nitin Misra, would support the order by claiming that the same warrants no interference as it has been passed strictly in accordance with law. I have heard the learned counsel for the parties and have also gone through the material placed on record. 7. It is not in dispute that prior to the filing of the complaint, the sale deed Ext.D-1 for consideration of Rs.5,00,000/- already stood executed by the appellant in favour of the respondent clearly acknowledging therein the receipt of Rs.5,00,000/- towards full and final payment as is evident from the following clause contained in page-2 of the sale deed: "And whereas the Seller has agreed to sell and the purchaser has also agreed to purchase in equal share the land 842/23173 share measuring 00-08-42 hectares (1 bighas) out of land comprised in Khata Khatoni No. 4min/24min, Khasra No. 54, measuring 2-31-73 Hectares, situated at Mohal Luharab, Tehsil Shimla, District Shimla, H.P. for a total sale consideration of Rs.5,00,000/- (Rupees Five Lac only) the seller has already received full and final payment from the purchaser. The seller hereby acknowledge the receipt of the said sale consideration." 8. The sale deed in question is a registered document to which the presumption under Section 114 of the Evidence Act that the official Act has to be performed in accordance with the procedure laid down under the Registration Act is attached. Therefore, when the document has been duly executed, there will be a presumption that it had been registered in accordance with law. Not only this, certificate of registration would also attach a presumption that Registering Authority had satisfied itself regarding the correctness and veracity of the sale deed and its contents. This presumption of legality of fact arising under Section 114 (e) of the Indian Evidence Act and under Section 60(2) of the Registration Act. No doubt, this presumption is rebuttable but the appellant has led no evidence to rebut this presumption. 9. This Court is not unmindful of the provisions contained in Sections 118(a) and 139 of the Negotiable Instrument Act whereby a presumption as to the Negotiable Instrument in favour of the debt is attached. No doubt, this presumption is rebuttable but the appellant has led no evidence to rebut this presumption. 9. This Court is not unmindful of the provisions contained in Sections 118(a) and 139 of the Negotiable Instrument Act whereby a presumption as to the Negotiable Instrument in favour of the debt is attached. But such presumption is of no avail to the appellant in the instant case because admittedly, the appellant did not take either civil or criminal action in case the sale consideration had been wrongly or fraudulently entered in the sale deed, which could have gone a long way to prima-facie establish that the cheques in question had in fact been issued for the purpose as set-out in the complaint. 10. In view of the aforesaid discussion and for the reasons stated hereinabove, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any