Shiv Charan Dass V. Lt. Col. Harbans Singh

CRR/1519/2012

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Shiv Charan Dass, the petitioner, was convicted under Section 138 of the Negotiable Instruments Act, 1881, by the Sub Divisional Judicial Magistrate, Tohana, for issuing a cheque that was dishonored. The cheque was issued in lieu of payment for crops sold by the complainant, Lt. Col. Harbans Singh, at the petitioner's shop. The petitioner appealed the conviction, which was upheld by the Additional Sessions Judge, Fatehabad. The petitioner then filed a revision petition in the High Court, challenging the judgments of the lower courts. The High Court dismissed the petition, agreeing with the lower courts that the cheque was issued for a valid consideration and that the petitioner failed to provide sufficient evidence to support his defense that the cheque was a security for a loan.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 799598 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 21-05-2012
• Assessment Year: misc
• Laws Referred To: Negotiable Instruments Act, 1881
• Result in Favour of: Others
• Court: HIGH COURT
• Assessee Lawyers: SUMEET GOEL
• Keywords: Cheque; Compensation; Conviction; Conviction; Criminal Revision; Negotiable Instruments; Legal Aid Fund
• Section: 139; 138; 118(b); 118(a)

Judgement Text

"IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No.1519 of 2012(O&M) Date of decision: 21.5.2012 Shiv Charan Dass ...... Petitioner Versus Lt. Col. Harbans Singh ...... Respondent CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG Present: Mr. Sumeet Goel, Advocate for the petitioner. ---- Rakesh Kumar Garg, J. 1. Petitioner was convicted in a complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”) by the Sub Divisional Judicial Magistrate, Tohana, vide judgment dated 25.1.2011 and was ordered to undergo simple imprisonment for a period of six months and to pay a sum of Rs.6,00,000/- i.e. double the amount of cheque, for commission of offence punishable under Section 138 of the Act, out of which, Rs.10,000/- was ordered to be deposited with the Sub Divisional Legal Aid Fund and the remaining amount of Rs.5,90,000/- was directed to be paid to the complainant, as compensation. 2. Appeal filed by the petitioner was dismissed by the Additional Sessions Judge, Fatehabad, vide impugned judgment dated 14.5.2012. 3. Petitioner is before this Court by way of the instant Crl.Rev.No.1519 of 2012 2 petition, challenging the aforesaid judgments of the Courts below. 4. Learned counsel appearing on behalf of the petitioner has vehemently argued that the complainant has failed to prove his case, as pleaded in the complaint and in fact, the trial Court has recorded a finding, rejecting the plea of the respondent/complainant and thus, there was no occasion for the trial Court to have drawn presumption against the petitioner, as contained in Section 139 of the Act and thus, the petitioner was entitled to acquittal. In support of his case, learned counsel has referred to following observations of the trial Court:- “...After appreciating the entire evidence available on the file this Court is of the view that the complainant has failed to prove on the file that when he has sold the crop to the accused firm and even no “J” form etc. has been placed on the file therefore, plea of the complainant that cheque was given to the complainant in lieu of the sale consideration of the crop is found to be false and baseless....” 5. It is the further case of learned counsel for the petitioner that the petitioner had taken a specific defence to the effect that, the cheque in question was issued in the year 1996, as security of a loan amount, which was repaid in December, 2003. The said plea of the petitioner has not been accepted by the Courts below on flimsy grounds, as there is ample evidence on record to prove the fact that the cheque in question was given as a security for a loan, which was repaid and in view of the aforesaid circumstances, the Crl.Rev.No.1519 of 2012 3 impugned judgments are liable to be set aside. 6. I have heard learned counsel for the petitioner and perused the impugned judgments. 7. The argument raised on behalf of the petitioner is devoid of any merit and is liable to be rejected. The specific case of the complainant is that a post-dated cheque in question was issued by the petitioner in lieu of the crop sold by him and his brother at the shop of the petitioner. In the present case, the petitioner has admitted the fact of issuance of cheque in question to the respondent in so many words. The only defence taken by the petitioner is that the said cheque was issued as a security in respect of a loan taken by him in the year 1996, which, according to him, stood repaid in the 2003. 8. It is well settled that there is a presumption that every negotiable instrument is made or drawn for certain consideration. There is further presumption in favour of the holder of a cheque to the effect that the said cheque was issued by the drawer for discharge of any debt or other liability, unless contrary is proved. 9. In the instant case, execution of the cheque is not in dispute. However, the petitioner has failed to rebut the presumption in favour of the holder of the cheque, though the petitioner has taken a defence that the cheque in question was issued as a security for a loan, which stood repaid in the year 2003, however, there is not even an iota of evidence to prove the aforesaid defence taken by the petitioner. Crl.Rev.No.1519 of 2012 4 10. Learned counsel for the petitioner has very fairly admitted this fact that there is no evidence to prove the defence plea taken by him. However, it is his plea that once the trial Court has found the pleaded case of the complainant, as false, the complaint should have been dismissed, as no presumption could be drawn in favour of the holder of the cheque in such circumstances. The argument raised is misconceived, because the appellate Court has recorded a finding that the respondent-complainant has taken a specific stand that the cheque in question was issued to him in lieu of the crop sold by him and the said pleaded case is proved from the evidence on record. The relevant part of the judgment of Appellate Court reads thus:- “25. After hearing both the sides and going through the lower court file carefully, I am of the considered opinion that the present appeal deserves to be dismissed. The specific case of the respondent – complainant in the complaint is that post dated cheque in question was issued by the appellant in lieu of the crop sold by him and his brother at the shop of the appellant. To be precise, para 3 of the complaint is re-produced below which reads as under:- “That in lieu of the crops sold by the complainant and his brother at the shop of the accused, the accused issued a post dated cheque No.400140 dated 1.10.2007 for Rs.3,00,000/- (Rupees three lacs) drawn on State Bank of India, Branch, Tohana.” Then, when appeared as his own witness, the respondent – complainant reiterated the same plea in Crl.Rev.No.1519 of 2012 5 evidence on oath. In his cross-examination, he clearly stated that he did not remember the date and the year when crop was lastly sold on the shop of the appellant. He further stated that the cheque in question was issued to him in August 2007 against the outstanding amount of the crop sold at the shop of the appellant earlier. Thus, it emerges that this is not the case of the respondent- complainant in the complaint or in evidence that the crop was sold by him in the commission agency of the firm of the appellant in the year 2007 or immediately prior thereto. Rather, his specific case is that the cheque in question was issued in lieu of the crops sold by him and his brother at the shop of the appellant earlier. As per section 118 (a) of the Negotiable Instruments Act, 1881, until the contrary is proved, there shall be a presumption that every negotiable instrument was made or drawn for consideration. There is also a presumption under section 118(b) of the said Act as to date, when the negotiable instrument was made or drawn. Further, as per section 139 of the Act, there is a presumption that holder of a cheque received the same for the discharge of any debt or other liability, unless contrary is proved. In the present case, the appellant has admitted in so many words the issuance of the cheque in question to the respondent. He has expressly admitted that he had issued the said cheque after signing, filling up the figure of the amount in words and figures and by writing the name of the respondent. The only exception the appellant is taking to the cheque, is that the date was written on the cheque as 1.10.2007 subsequently, by the respondent and the said cheque was issued as a security in respect of loan of Rs.3,00,000/- taken by him in the year 1996. However, it has come in the evidence of the appellant Crl.Rev.No.1519 of 2012 6 that there is no record maintained by him in his account books regarding taking of the said loan of Rs.3,00,000/- from the respondent. There is only the oral testimony of the appellant regarding taking of the said loan of Rs.3,00,000/- in the year 1996 and repayment of the same. To my mind, such an oral evidence could not be relied upon because the appellant was admittedly, running the business of commission agency and was maintaining account books in the regular course of his business and if he had taken any alleged friendly loan of Rs.3,00,000/- then, he must have made entry in his account books and shown the same in his income tax returns. Not only this, the appellant would also have made entries in the account books regarding repayment of the loan from time to time. Thus, when the best documentary evidence is withheld or missing, oral testimony could not be relied upon. The case of the respondent is that he and his brother had been dealing with the firm of the appellant for the last twenty years and the cheque in question was given to him in lieu of the crops sold earlier. In the face of the said specific case of the respondent and the presumption under sections 139 and 118(a) of the Act, evidence led by the appellant that he had closed down his business of commission agency after 31.3.2004, is not of much relevance. It cannot be lost sight of the fact that as per own case of the appellant, his business had run into rough weather and he had incurred losses in the year 2003-04 when he had to close down his business of commission agency and shift to Delhi. In the face of this specific plea of the appellant, there is every possibility that delayed payment of the crops sold in the commission agency of the firm of the appellant was Crl.Rev.No.1519 of 2012 7 made by the appellant due to his financial condition. The facts remains that presumption under section 139 of the Act is not rebutted by the defence evidence and there shall be a presumption that the cheque in question was issued for consideration and in discharge of existing liability. The mere fact that date on the cheque in question is with the different pen, would not be sufficient to throw away case of the respondent especially when, there is a presumption under section 118 (b) of the Act as to date. There is no dispute with regard to the propositions of law laid down in the authorities relied upon by the learned counsel for the appellant but the same have no application to the peculiar facts of this case. In the present case, at this stage, it may be mentioned that the learned trial court has based conviction of the appellant with regard to his existing liability qua the loan amount of Rs.3,00,000/- but the said finding is not based on proper appreciation of evidence and the law applicable thereto and thus, conviction is sustained on different ground as mentioned herein before. 11. Learned counsel for the petitioner was unable to point out any material evidence, on the basis of which, it can be said that the aforesaid findings of the Additional Sessions Judge are not supported by the record. 12. In view of the aforesaid, I find no merit in this revision petition and the same is dismissed. May 21, 2012 (RAKESH KUMAR GARG) ak JUDGE "