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2024 DIGILAW 349 (HP)

Vikas Verma v. Ashutosh Soni

2024-08-28

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition against the judgment dated 21.05.2022, passed by learned Additional Sessions Judge-II, Una, District Una, H.P. (learned First Appellate Court), vide which the appeal filed by the petitioner (appellant before the learned First Appellate Court) was dismissed and the judgment of conviction and order of sentence dated 30.11.2019, passed by learned Judicial Magistrate, First Whether reporters of the local papers may be allowed to see the judgment? Yes Class, Court No.II, Una, District Una (learned Trial Court) were upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present petition are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Sections 138 of the Negotiable Instruments Act(for short N.I.Act).It was asserted that the complainant intended to purchase a light motor vehicle to run it as a taxi. The accused visited the complainant’s village in January 2014 to attend the marriage of the complainant’s cousin. The complainant expressed his desire to purchase a vehicle, to which the accused assured him to do the needful. The accused asked the complainant to arrange an amount of Rs.3,30,000/-. The complainant handed over this amount to the accused on 23.03.2014 in the presence of Sunita and Rakesh Verma. The accused failed to purchase the vehicle as assured by him. The complainant asked the accused to purchase the vehicle or to return the amount. The accused issued a cheque of Rs.3,30,000/- drawn on UCO Bank Dulehra, Tehsil Haroli, District Una, H.P. in the discharge of his legal liability. The complainant presented the cheque before his bank but it was dishonoured with the endorsement “funds insufficient”. The complainant served a notice upon the accused asking him to pay the amount within 15 days from the receipt of the notice; however, the accused failed to do so. Hence, the complaint was filed to take action against the accused. 3. The learned Trial Court found sufficient reason to summon the accused. When the accused appeared; a notice of accusation was put to him for the commission of an offence punishable under Section 138 of N.I.Act to which the accused pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW-1) to prove his case. 3. The learned Trial Court found sufficient reason to summon the accused. When the accused appeared; a notice of accusation was put to him for the commission of an offence punishable under Section 138 of N.I.Act to which the accused pleaded not guilty and claimed to be tried. 4. The complainant examined himself (CW-1) to prove his case. 5. The accused in his statement recorded under Section 313 of Cr. P.C. stated that the complainant did not hand over any money to him. He had not handed over the cheque to the complainant. His cheque was stolen. He had filed the F.I.R. regarding the same. He had issued instructions to the bank not to honour the cheque. He did not receive any notice. He stated that he wanted to lead evidence in defence but subsequently, his counsel made a statement that the accused did not want to lead any evidence in defence. 6. Learned Trial Court held that the cheque carries with it a presumption of consideration. The accused did not provide any evidence to rebut the presumption. He relied upon a copy of the daily diary report but the same was not proved. No explanation was provided as to how the complainant came into possession of the stolen cheque and obtained the signature of the accused. The cheque belongs to M/S Verma Scientific Company but non-impleadment of the proprietor will not make any difference. Hence, the accused was convicted for the commission of an offence punishable under Section 138 of N.I. Act and sentenced to undergo simple imprisonment for four months and pay a compensation of Rs.4,00,000/- and in default of payment of compensation, to further undergo simple imprisonment for three months. 7. Being aggrieved from the judgment of conviction and order of sentence passed by the learned Trial Court, the accused preferred an appeal, which was decided by the learned Additional Sessions Judge-II, Una, District Una, H.P. (learned First Appellate Court). The learned First Appellate Court held that the cross-examination of the complainant did not show anything to discredit his testimony. The cheque carried with it a presumption of consideration and the accuse d did not lead any evidence to rebut the presumption. All the ingredients of Section 138 of N.I.Act were satisfied. The re was no infirmity in the judgment and order passed by the learned Trial. Court. Hence, the appeal was dismissed. 8. The cheque carried with it a presumption of consideration and the accuse d did not lead any evidence to rebut the presumption. All the ingredients of Section 138 of N.I.Act were satisfied. The re was no infirmity in the judgment and order passed by the learned Trial. Court. Hence, the appeal was dismissed. 8. Feeling aggrieved and dissatisfied with the judgments and order passed by the learned Courts below, the accused had filed the present revision petition asserting that the learned Trial Court erred in convicting and sentencing the accused. It was wrongly held that all the ingredients for the commission of an offence punishable under Section 138 of N.I.Act were satisfied. The complainant did not have the financial capacity to pay the amount. The findings recorded by the learned Courts below are contradictory. The accused has to prove his defence by a preponderance of probabilities, which was duly established in the present case. Hence, it was prayed that the present appeal be allowed and the judgments and order passed by the learned Courts below be set aside. 9. I have heard Mr Hemant Kumar Thakur, learned counsel for the petitioner, Mr A.K.Sharma, learned counsel for respondent No.1, and Mr Lokender Kutlehria, learned Additional Advocate General for respondent No.2. 10. Mr Hemant Kumar Thakur, learned counsel for the petitioner/accused submitted that the petitioner–accused is innocent and he was falsely implicated. The cheque was issued by M/S Verma Scientific Company and the Company was not impleaded as an accused. There is no averment in the complaint that the accused was in charge and responsible to the Company for its daily affairs. In the absence of this, the accused could not have been held liable. He relied upon the judgment of this Court in Devender Sharma vs Jai Singh, 2021:HHC:8980 in support of his submission. 11. Mr A.K.Sharma, learned counsel for respondent No.1/accused submitted that the accused had taken a defence that his cheque was misplaced. He had lodged the F.I.R. and asked the bank not to pay the amount mentioned in the cheque. This shows that the cheque belongs to the accused. Thus, there was no necessity to implead M/s Verma Scientific Company. The learned Courts below had rightly convicted and sentenced the accused. He prayed that the present revision petition be dismissed. 12. Mr. He had lodged the F.I.R. and asked the bank not to pay the amount mentioned in the cheque. This shows that the cheque belongs to the accused. Thus, there was no necessity to implead M/s Verma Scientific Company. The learned Courts below had rightly convicted and sentenced the accused. He prayed that the present revision petition be dismissed. 12. Mr. Lokender Kutlehria, learned Additional Advocate General submitted that the dispute is between the private parties and the State has nothing to say in the matter. 13. I have given considerable thought to the submission made at the bar and have gone through the records carefully. 14. The present revision has been filed against the concurrent findings of the fact recorded by both the learned Courts below. It was laid down by the Hon’ble Supreme Court in Malkeet Singh Gill v. State of Chhattisgarh, (2022) 8 SCC 204 : (2022) 3 SCC (Cri) 348: 2022 SCC OnLine SC 786 that the revisional court is not appellate Court and it can only rectify the patent defect, errors of jurisdiction or the law. It was observed on page 207 “10. Before adverting to the merits of the contentions, at the outset, it is apt to mention that there are concurrent findings of conviction arrived at by two courts after a detailed appreciation of the material and evidence brought on record. The High Court in criminal revision against conviction is not supposed to exercise the jurisdiction alike to the appellate court and the scope of interference in revision is extremely narrow. Section 397 of the Criminal Procedure Code (in short “CrPC”) vests jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court. The object of the provision is to set right a patent defect or an error of jurisdiction or law. There has to be well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 11. There has to be well-founded error which is to be determined on the merits of individual cases. It is also well settled that while considering the same, the Revisional Court does not dwell at length upon the facts and evidence of the case to reverse those findings. 11. This Court in Manju Ram Kalita v. State of Assam [Manju Ram Kalita v. State of Assam, (2009) 13 SCC 330 : (2010) 1 SCC (Cri) 1015], while dealing with the scope of reappreciation of evidence by higher Court in criminal revision, observed in paras 9, 10 and 11 of the judgment as under : (SCC pp. 333- 34) “9. So far as Issue 1 is concerned i.e. as to whether the appellant got married toSmt Ranju Sarma, is a pure question of fact. All three courts below have given concurrent findings regarding the factum of marriage and its validity. It has been held to be a valid marriage. It is a settled legal proposition that if the courts below have recorded the finding of fact, the question of reappreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon the fruitless task of determining the issues by reappreciating the evidence. 10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from normal practice. ‘9. … The position may undoubtedly be different if the inference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by a violation of any rule of law or procedure.’ (Vide Sriniwas Ram Kumar v. Mahabir Prasad [Sriniwas Ram Kumar v. Mahabir Prasad, 1951 SCC 136] , SCC p. 139, para 9) *** 11. Thus, it is evident from the above that this Court being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Thus, it is evident from the above that this Court being the fourth court should not interfere with the exercise of discretion by the courts below as the said courts have exercised their discretion in good faith giving due weight to relevant material and without being swayed by any irrelevant material. Even if two views are possible on the question of fact, we, being the fourth court, should not interfere even though we may exercise discretion differently had the case come before us initially. In view of the above, we are not inclined to interfere with the finding of fact so far as the issue of bigamy is concerned nor the quantum of punishment on this count is required to be interfered with.” 15. The present revision has to be decided as per the judgment of the Hon’ble Supreme Court. 16. A perusal of the cheque (Ext.CW-1/B) shows that it has been issued by M/s Verma Scientific Company. The complaint and the proof affidavit (CW-1/A)are silent regarding the connection of the accused to M/s Verma Scientific Company. The complainant and the affidavit state that the accused had issued a cheque in favour of the complainant. Since the cheque was not issued by the accused but by M/s Verma Scientific Company, therefore, it was essential for the complainant to establish the connection between the accuse d and M/s Verma. 17. The complainant stated in his cross-examination that he had not mentioned in his complaint that the accused is running Verma Scientific Company. He did not know the number of proprietors of M/s Verma Scientific Company. He admitted that the cheque bears the stamp of M/s Verma Scientific Company and he had not arrayed the Company or the proprietor as the accused. The complainant did not examine any bank official to establish that the accused was connected in any manner to M/s Verma Scientific Company. 18. It is apparent from the perusal of the complaint, proof affidavit and the cross-examination of the complainant that there is nothing on record to show the connection between the accused and M/s Verma Scientific Company. The learned Trial Court noticed this aspect but stated that the complainant or the holder in due course is not concerned with the number of proprietors but only with the fact that the cheque was duly filled up by a person. The learned Trial Court noticed this aspect but stated that the complainant or the holder in due course is not concerned with the number of proprietors but only with the fact that the cheque was duly filled up by a person. Learned Trial Court failed to appreciate that in the absence of any evidence connecting the accused to M/s Verma Scientific Company, the complainant’s plea that the accused had issued the cheque in the discharge of his legal liability on an account maintained by him with the bank was missing. It was laid down by Meghalaya High Court in HDFC Bank Ltd. v. Baklai Siej, 2022 SCC OnLine Megh 178 that where the cheque was not drawn on an account maintained by the accused, he cannot be held liable. It was observed: “13. From the above, what can be observed is that for an offence under Section 138 to be made out a cheque has to be issued by the account holder under his name and signature. It is clear that only the holder of the account on which the cheque is drawn can be made liable and such culpability cannot be extended to others except as provided under Section 141 N.I. Act which deals with offences by and on behalf of the company or partnership, where the signatory to the cheque may be a Director of the company or a Partner of a partnership firm. 14. In the case of Alka Khandu Afhad v. Amar Syamprasad Mishra, 2021 SCC OnLine SC 189, the Hon'ble Supreme Court at paragraph 16 has observed that only a person who is the signatory to his cheque and such cheque having been returned by the bank unpaid can be said to have committed an offence under Section 138 N.I Act. This section does not speak about joint liability, even in case of joint liability, in case of individual persons, a person other than a person who has drawn a cheque on an account maintained by him cannot be persecuted for an offence under Section 138 N.I. Act, unless the bank account is jointly maintained and that he was a signatory to the cheque.” 19. A similar situation arose before the Hon’ble Supreme Court in Jugesh Sehgal v. Shamsher Singh Gogi, (2009) 14 SCC 683 : (2009) 5 SCC (Civ) 482 : (2010) 2 SCC (Cri) 218: 2009 SCC OnLine SC 1278, wherein the cheque was drawn by the accused not on his account but on an account maintained by ‘S’. The Hon’ble Supreme Court held that the first ingredient of Section 138 of NI Act that the cheque should have been drawn on an account maintained by him was not satisfied. It was observed: 13. It is manifest that to constitute an offence under Section 138 of the Act, the following ingredients are required to be fulfilled: (i) A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account; (ii) the cheque should have been issued for the discharge, in whole or in part, of any debt or other liability; (iii) that the cheque has been presented to the bank within six months from the date on which it is drawn or within the period of its validity whichever is earlier; (iv) that the cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (v) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (vi) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 15 days of the receipt of the said notice. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. 14. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque can be deemed to have committed an offence under Section 138 of the Act. 14. In the case before us, it is clear from the facts, briefly noted above, and in Para 3 of the complaint as extracted, that on receipt of the return memo from the Bank, the complainant is stated to have realised that the dishonoured cheque was issued from an account which was not maintained by Accused 1—the appellant herein, but by one Shilpa Chaudhary. 15. As a matter of fact and perhaps having gained the said knowledge, on 20-1-2001 the complainant filed an FIR against all the accused for offences under Sections 420, 467, 468, 471 and 406 of the Penal Code (IPC). Thus, there is hardly any dispute that the cheque, subject matter of the complaint under Section 138 of the Act, had not been drawn by the appellant on an account maintained by him in Indian Bank, Sonepat Branch. That being so, there is little doubt that the very first ingredient of Section 138 of the Act, enumerated above, is not satisfied and consequently, the case against the appellant for having committed an offence under Section 138 of the Act cannot be 20. Therefore, in view of the binding precedent of the Hon’ble Supreme Court and the bare language of Section 138, the cheque should have been drawn on an account maintained by the accused. If the cheque is drawn not on the account maintained by the accused but by some other person, the same will not attract the provisions of Section 138 of the NI Act. 21. A heavy reliance was placed upon the entry in the daily diary and the letter written by the accused to the bank, however, both of these documents were not proved and even not marked; therefore, no reliance can be placed upon the same. 22. Both the learned Courts below proceeded on the basis that the cheque (Ext. CW-1/B) bears the signatures of the accused and a presumption under Section 118(a) and Section 139 of N.I. Act could be drawn in the present case. There was no evidence of this fact. 22. Both the learned Courts below proceeded on the basis that the cheque (Ext. CW-1/B) bears the signatures of the accused and a presumption under Section 118(a) and Section 139 of N.I. Act could be drawn in the present case. There was no evidence of this fact. The complaint and the affidavit do not mention that the cheque bears the signatures of the accused.As already stated; no official of the bank was examined to establish the name of the person, who had put the signatures on the cheque. In the absence of proof of the signatures, a presumption under Section 118(a) and Section 139 of N.I.Act could not have been drawn. 23. Thus, the essential requirement that the accused had issued a cheque drawn on a bank from his account was not satisfied. Both the learned Courts below failed to notice this aspect of the complainant’s case. Hence, the judgments and order passed by the learned Courts below cannot be sustained. 24. Consequently, the present petition is allowed and the judgments and order passed by the learned Courts below are set aside. The complaint is dismissed and the accused is acquitted of the commission of an offence punishable under Section 138 of the Negotiable Instruments Act. 25. The petitioner is directed to furnish his personal bond within four weeks in the sum of Rs.25,000/- with one surety in the like amount to the satisfaction of the learned Trial Court, which shall be effective for six months with stipulation that in the event of Special Leave Petition being filed against this judgment, or on grant of the leave, the appellant on receipt of notice(s) thereof, shall appear before the Hon’ble Supreme Court. 26. Records of the learned Courts below be sent back forthwith. Pending applications, if any, also stand disposed of.