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2022 DIGILAW 885 (HP)

Ranjeet Chauhan v. RKC, Narkanda

2022-12-28

SANDEEP SHARMA

body2022
JUDGMENT : Sandeep Sharma, J. Instant criminal revision petition filed under Section 397 of Cr.PC read with Section 401 Cr.PC, lays challenge to judgment dated 16.11.2021, passed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, Camp at Reckong Peo, in Criminal Appeal/CIS Case No. 08 of 2021, affirming judgment of conviction and order of sentence dated 11.7.2019, passed by the learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, H.P., whereby the learned trial Court while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 8,25,000/- to the complainant. 2. Precisely, the facts of the case, as emerge from the record are that respondent/complainant lodged complaint under Section 138 of the Act before the learned Additional Chief Judicial Magistrate Rampur, stating therein that he is a fruit commission agent and deals with purchase of packed apple boxes of different growers on commission basis and further sells the same to various Arties at Narkanda under the name and style of M/s RKC Narkanda. He alleged that in the apple season, accused purchased the consignment of apple boxes from him for a total consideration of Rs. 2.00 crores and out of the said amount, the accused made partial payments and issued cheques toward the balance consideration. He alleged that cheque bearing No. 354082 dated 15.4.2012 amounting to Rs. 8,00,000/- issued in his favour, on its presentation was dishonoured. He alleged that since accused failed to make the payment good within the stipulated period despite his having received legal notice issued to him, he had no option but to initiate proceedings under Section 138 of the Act in the competent court of law. 3. Complainant with a view to prove his case examined Shri Ranvir Singh as CW1 and adduced his evidence by way of affidavit Ext.CW1/A. This witness also tendered in evidence documents Ext.CW1/B to Ext.CW1/F. On the other hand, accused in his statement recorded under Section 313 Cr.PC denied the case of the complainant in toto and claimed himself to be innocent and examined one Sh. Hemant Kumar, official of APMC Rampur as DW1. Hemant Kumar, official of APMC Rampur as DW1. He attempted to carve out a case that cheque in question was issued as security and same was mis-used. 4. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment dated 11.7.2019, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above. 5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, petitioner-accused appeal before the learned first appellate Court, but same was dismissed vide judgment dated 16.11.2021. 6. Vide order dated 10.5.2022, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing 50% of the cheque amount, however fact remains that aforesaid order never came to be complied with. 7. Today, during the proceedings of the case, learned counsel for the petitioner states that since petitioner is not coming forward to deposit 50% of the compensation amount in terms of previous orders passed by this Court, this Court may proceed to decide the petition on its own merits. 8. Having perused material available on record vis-à-vis reasoning assigned in the judgments impugned in the instant petition, this court finds no illegality and infirmity in the same, rather same appears to be based upon the proper appreciation of facts as well as law and as such, no interference is called for. Though in the instant case, petitioner while getting his statement recorded under Section 313 denied the case of the prosecution in toto, but while conducting cross-examination of complainant he tried to carve out a case that cheque in question was issued as security, but same was mis-used by the petitioner. It is quite apparent from the evidence available on record that there is no denial, if any, on the part of the petitioner-accused that cheque was issued by him and it bears his signature. If it is so, presumption available under Sections 118 and 139 of the Act comes into play, which clearly provides that there is presumption available in favour of the holder of the cheque that same was issued in discharge of the lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence. Probable defence could be raised by the accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite ample opportunities, failed to raise the probable defence. 9. The Hon’ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), 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 on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:- “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 138can 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. 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. 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.” 10. Complainant examined Shri Ranvir Singh as CW1 and tendered his evidence by way of affidavit Ext.CW1/A, wherein he reiterated the averments contained in the complaint. Complainant examined Shri Ranvir Singh as CW1 and tendered his evidence by way of affidavit Ext.CW1/A, wherein he reiterated the averments contained in the complaint. He successfully proved on record cheque in question Ext.CW1/B, legal notice Ext.CW1/C, memo Ext.CW1/D, postal receipt Ext.CW1/E and acknowledgment Ext.CW1/F. Cross-examination conducted upon this witness nowhere suggests that accused was able to extract something contrary to what this witness stated in his examination in chief. He deposed that accused had taken the apple crop to the tune of Rs. 2.00 crores from him and he had not paid the entire amount in lieu of the crop. Though this witness admitted that he has not annexed any bill voucher with the complaint, but self stated that he has not annexed copy of the ledger. This witness denied that entire amount has been received from the accused person. 11. Though accused in his statement recorded under Section 313 CrPC denied the case of the prosecution in toto, but if pattern of the crossexamination conducted upon this witness is perused in its entirety, it clearly reveals that accused attempted to carve out a case that cheque in question was issued as security, but same has been mis-used. There is no suggestion worth the name on behalf of the accused that he had given blank cheque or he had not signed the cheque or his sign was forged by somebody. Since factum with regard to issuance of cheque as well as signature thereupon is not in dispute, presumption available under Section 139 of the Act rightly came to be applied in the case of the respondent. 12. Though accused with a view to rebut the aforesaid presumption examined Mr. Hemant Kumar Sharma, Assistant AAR, APMC, Rampur as DW1, but close scrutiny of his statement, if read in its entirety clearly reveals that he did not state anything specific with regard to averments contained in the complaint. He deposed that RKC had done the business of Rs. 95,12,600/- and the APMC has received the fees to an amount of Rs. 95,126/- as commission. In his cross-examination, this witness admitted that he cannot state about the exact monetary transaction in this case between the accused and the complainant. 13. He deposed that RKC had done the business of Rs. 95,12,600/- and the APMC has received the fees to an amount of Rs. 95,126/- as commission. In his cross-examination, this witness admitted that he cannot state about the exact monetary transaction in this case between the accused and the complainant. 13. In the case at hand, accused has not been able to dispute that cheque in question was issued by him and it bears his signature, only submission of the learned counsel for the accused is that the accused had paid the entire consideration to the complainant, but yet he misused the cheque in question, which was issued as security. By putting suggestions to the complainant, during his cross-examination as have been taken note herein above, accused has admitted factum with regard to his having business relationship with the respondent-complainant and thereafter issuance of cheque towards the discharge of his lawful liability. Mere statement of DW1 that in the year, 2011-12, RKC has done the business of 95,12,600/- does not ipso facto prove that the entire consideration has been paid by the accused to the complainant, especially when this witness categorically deposed that he does not now about the exact monetary transaction between the complainant and the accused. The crossexamination conducted upon complainant itself suggests that accused attempted to carve out a case that he had paid the entire consideration or it was only for Rs. 1.60 crore, which was required to be paid by him. Accused failed to adduce on record evidence, from which it could be inferred that the entire consideration has been paid by him. Merely the statement given by the accused that he had paid the entire consideration amount, may not be sufficient to exonerate him from his liability, especially when factum with regard to issuance of cheque as well as signature thereupon are not denied. Moreover, by now it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable Instruments Act. Hon’ble Apex Court in case titled Sripati Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under: “16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. Hon’ble Apex Court in case titled Sripati Singh v. State of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under: “16. A cheque issued as security pursuant to a financial transaction cannot be considered as a worthless piece of paper under every circumstance. ‘Security’ in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulfilment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specified timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would flow. 14. In the case at hand, accused denied the receipt of any legal notice, but perusal of the legal notice Ext.CW1/D and the postal receipt Ext.CW1/E depicts that same was delivered to the accused, but accused has nowhere disputed his signature on the acknowledgement Ext.CW1/F meaning thereby, he miserably failed to prove factum with regard to his having not received the legal notice. 15. By now it is well settled that drawer can still make the payment within 15 days of the receipt of the summons and can absolve him of the presumption under Section 138 of the Act and if the drawer does not make the payment within 15 days of the receipt of the summons, the plea of proper service is not applicable to him. See:- C.C. Alavi Haji v. Palapetty Muhammed and Anr (2007) 6 SCC 555 . 16. See:- C.C. Alavi Haji v. Palapetty Muhammed and Anr (2007) 6 SCC 555 . 16. Though learned counsel for the petitioner argued that accused had paid the entire amount and cheque issued by him was mis-used, but there is nothing in the cross-examination of the complainant that accused had demanded the security cheques or orally asked the complainant at any point of time to return the cheque, which was allegedly issued by him as security. Otherwise also, no letter or any notice ever came to be led on record to show that accused made any correspondence, if any, with complaint for return of the security cheque as alleged by him. 17. Having scanned the entire evidence led on record, this Court finds that respondent/complainant successfully proved on record that cheque in question was issued by the accused in discharge of his lawful liability, but same was dishonored on account of insufficient funds. Since despite notice, accused failed to make the payment good within the stipulated time of 15 days, complainant had no option but to initiate the proceedings under Section 138 of the Act. 18. In the case at hand, complainant successfully proved on record all the ingredients of Section 138 of the Act and as such, no illegality can be said to have been committed by the courts below while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Act and as such, same has been rightly upheld by the learned Sessions Judge, Kinnaur. 19. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In this regard, reliance is placed upon the judgment passed by Hon’ble Apex Court in case “State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri” (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- “In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.” 20. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the courts below while passing impugned judgments, and as such, there is no occasion, whatsoever, to exercise the revisional power. 21. True it is that the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/ incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below. 22. Consequently, in view of the discussion made herein above as well as law laid down by the Hon’ble Apex Court, this Court sees no valid reason to interfere with the well reasoned finding recorded by the courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld. 23. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. 23. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of.