Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 98 (HP)

Satvir Singh v. Sukhwinder Singh

2023-02-28

SANDEEP SHARMA

body2023
JUDGMENT : Sandeep Sharma, J. Instant criminal revision petition filed under Section 397(1) of Cr.PC read with Section 401 Cr.PC, lays challenge to judgment dated 1.11.2021, passed by the learned Sessions Judge Shimla, District Shimla, H.P., in Criminal Appeal No. 37/2021, affirming the judgment of conviction and order of sentence dated 8/30.4.2021, in criminal Case No. 250-3 of 2016, passed by the learned JMFC-5, 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.70,000/- 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 JMFC, Shimla, stating therein that accused with a view to discharge his liability, issued cheque bearing No. 561714 dated 20.4.2016 amounting to Rs.40,000/-, drawn at Punjab and Sindh Bank Sanjauli, Shimla, H.P., but fact remains that aforesaid cheque on its presentation to the bank concerned, was dishonoured. Since accused failed to make the payment good within the stipulated period despite his having received legal notice issued to him, complainant had no option but to initiate proceedings under Section 138 of the Act in the competent court of law. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 8/30.4.2021, 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. 4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, petitioner-accused preferred an appeal before the learned first appellate Court, but same was dismissed vide judgment dated 1.11.2021. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein to setaside the judgment of conviction and order of sentence recorded by the court below. 5. Vide order dated 16.3.2022, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing the compensation amount within a period of four weeks, however fact remains that aforesaid order never came to be complied with despite sufficient opportunity. Today, Mr. 5. Vide order dated 16.3.2022, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing the compensation amount within a period of four weeks, however fact remains that aforesaid order never came to be complied with despite sufficient opportunity. Today, Mr. Mohar Singh, learned counsel appearing for the petitioner-accused submitted that despite repeated communications, petitioner is not coming forward to impart instructions and as such, this Court may proceed to decide the petition on its own merits. 6. Having perused material available on record, especially evidence led on record by the respective parties, this Court is not persuaded to agree with learned counsel for the petitioner that courts below have not appreciated the evidence in its right perspective, rather same being based upon the proper appreciation of facts as well as law calls for no interference. 7. In the case at hand there is no denial, if any, on the part of the petitioner-accused with regard to issuance of cheque in question as well as his signature thereupon. Since there is no dispute, if any, with regard to issuance of cheque as well as signature thereupon of petitioner, presumption as 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. 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. 8. 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. 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. 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. 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.” 9. If the entire evidence led on record by the complainant is read in its entirety, it clearly suggests that he successfully proved all the ingredients of Section 138 of the Act. With a view to rebut the presumption, accused tried to set up a case that cheque in question was issued as security but such defence of him never came to be probablized. 10. With a view to rebut the presumption, accused tried to set up a case that cheque in question was issued as security but such defence of him never came to be probablized. 10. While examining himself as CW1, complainant tendered his affidavit Ext.CW1/A in his examination in chief, wherein he reiterated almost all the averments contained in the complaint. He also tendered in evidence cheque ExtCW1/B, return memo Ext.CW1/C, legal notice Ext.CW1/D and postal receipt Ext.CW1/E. 11. Cross-examination conducted upon this witness, if perused in its entirety, clearly suggests that accused was unable to extract something contrary to what he stated in his examination-in-chief. He in his cross-examination admitted that he alongwith accused and other persons formed a committee and each member was supposed to contribute a sum of Rs.5000/- pm for twenty months towards the committee. This witness also admitted that he had paid sixteen installments of Rs.5000/- towards the committee. He stated that he never picked up the committee of Rs.1,00,000/-. He feigned ignorance that each member of the committee had furnished cheques as security. He denied that he had financial transaction with the accused only with regard to the committee; however, he denied that the accused had issued three cheques to the head of the committee as security. He also denied that he had misused the cheques of the accused after taking them from the head of the committee. 12. Petitioner-accused in his statement recorded under Section 313 Cr.PC nowhere disputed the factum with regard to issuance of cheque and signature thereupon, rather he while admitting factum with regard to issuance of cheque claimed that same was issued as security. 13. While examining himself as DW1, he stated that in the year 2014, he alongwith the complainant and other persons had formed a committee in which there were twenty members and each member was required to pay installments of Rs.5000/- per month for twenty months. He stated that Committee came to an end after 16 months. He deposed that he had paid 16 installments towards the committee and also issued three cheques as security to the head of the committee. He deposed that subsequently, his cheques were misused by the complainant. He deposed that there was no written record of the committee. He admitted that the fact of closure of the committee came to his knowledge in the year, 2015. He deposed that subsequently, his cheques were misused by the complainant. He deposed that there was no written record of the committee. He admitted that the fact of closure of the committee came to his knowledge in the year, 2015. He denied that he had borrowed sum of Rs.80,000/- in January, 2016 from the complainant. He also denied that in April, 2016, he issued a cheque to the complainant towards part payment of his liability. He also denied that he received the notice Ext.CW1/D from the complainant at the address of his shop. 14. Careful perusal of the entire evidence available on record clearly reveals that the disputed cheque Ext.CW1B was dishounured on account of “insufficient funds” vide memo Ext.CW1/C. Since accused failed to dispute his signatures on the disputed cheque and claimed to have issued the cheque as security, he was required to lead some positive evidence to rebut the presumption as available under Section 138 of the Act that cheque in question was not issued towards the discharge of lawful liability. To rebut the statutory presumption, the accused is not expected to prove his defence beyond reasonable doubt as is expected of the prosecution in a criminal trial, rather accused may adduce direct evidence to prove that the cheque in question was not supported by consideration and that there was no debt or liability to be discharged by him. Hon’ble Apex Court in Krishna Janardhan Bhat v. Dattatraya G. Hegde, AIR 2008 SC 1325 , has categorically ruled that standard of proof on the part of an accused and that of the prosecution in a criminal case is different and the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. However to rebut the presumption, accused is required to bring on record such facts and circumstances which may lead Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that the consideration did not exist. 15. However to rebut the presumption, accused is required to bring on record such facts and circumstances which may lead Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that the consideration did not exist. 15. Hon’ble Apex Court in Kumar Exports V. Sharma Carpets (2009) 2 SCC 513 , has held that there may not be sufficient negative evidence which could be brought on record by the accused to discharge his burden, yet mere denial would not fulfill the requirements of the rebuttal as envisaged under Sections 118 and 139 of the Negotiable Instruments Act. 16. In Rohitbhai Jivanlal Patel v. State of Gujarat and Anr., 2019 (18) SCC 106 , Hon’ble Apex Court has held that once the accused could not deny his signatures on the cheque in question that had been drawn in favour of the complainant, it is required to be presumed that the cheque in question was drawn for consideration and the holder of the cheque received the same in discharge of an existing debt. In the case at hand, accused set up a case that he had issued three cheques including the cheque Ext.CW1/B as security in favour of the head of the Committee namely Nitish Kumar, but there is nothing on record suggestive of the fact that accused issued cheque as security in favour of the complainant. Accused failed to produce either Nitish Kumar, head of the committee or any other member of the Committee in the witness box to prove that cheque was issued by him to the head of the committee as security. In the absence of any evidence on record, plea putforth by the accused in his defence that disputed cheque was given by him as security to the head of the committee, which was misused by the complainant, does not appear to be reasonable and probable. 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 period, complainant had no option but to initiate the proceedings under Section 138 of the Act. Since despite notice, accused failed to make the payment good within the stipulated period, complainant had no option but to initiate the proceedings under Section 138 of the Act. 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 Shimla. 18. 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 SCC 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. 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.” 19. 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, there is no occasion, whatsoever, to exercise the revisional power. 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, there is no occasion, whatsoever, to exercise the revisional power. 20. True it is that the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 SCC 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. 21. 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 judgments 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. 22. 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.