Shri Vijay Kumar Sud V. Sh. Ghanshyam Dass Tayal

CR.A/350/2017

AI Insights

The case revolves around a complaint filed by the appellant, Shri Vijay Kumar Sud, against the respondent, Sh. Ghanshyam Dass Tayal, under Section 138 of the Negotiable Instruments Act. The appellant alleged that he had lent an amount of \\u20b910 Lac to the respondent, who issued four post-dated cheques as a guarantee for the loan. The cheques were dishonored due to insufficient funds, leading to the filing of the complaint. The trial court dismissed the complaint, finding insufficient evidence to establish that the cheques were issued in lieu of the loan. The appellant's appeal to the High Court of Himachal Pradesh was dismissed, affirming the trial court's decision.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 814580 (HC-HIMACHAL_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 20-06-2018
• Assessment Year: misc
• Laws Referred To: Negotiable Instruments Act
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: G S RATHOUR
• Assessee Lawyers: BALRAM SHARMA
• Keywords: Acquittal; Cheque dishonour; Insufficient funds; Legal Notice; Loan
• Section: 139; 138

Judgement Text

" IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal. No.: 350 of 2017. Decided on: 20.06.2018. Shri Vijay Kumar Sud .…Appellant. Versus Sh. Ghanshyam Dass Tayal … Respondent. _________________________________________________________________ Coram The Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 No _____________________________________________________________ For the appellant : Mr. Balram Sharma, Advocate. For the respondent : Mr. G.S. Rathour, Advocate. Ajay Mohan Goel, Judge (Oral) By way this appeal, the appellant has laid challenge to judgment dated 26.10.2016, passed by learned Additional Chief Judicial Magistrate, Court No. 2, Shimla, HP, in Criminal Case No. 2609/3 of 2014/2012, vide which, learned Court below has dismissed the complaint filed by the present appellant under Section 138 of the Negotiable Instruments Act (hereinafter referred to as ‘NI Act’). 2. The case of the complainant was that he had advanced an amount of \u000110 Lac to the respondent/accused Ghanshyam Dass Tayal as loan, and in lieu of the same, the accused had issued four post dated cheques, each for an \u0001\u0002\u0001\u0002\u0003\u0004\u0002\u0003\u0005\u0006\u0005\u0003\u0007\b\u0005\u0004\u0003\u0005 \u0006\b \u0006\u0004\u0002\u0003\u0006 \b \u0006\u0007 \u0007\u0003\u0005 \u0006\u000e \u000f\u0006\u0010\u0003\u0006 \b\u0011\u0003\u0012\u0006\u0004\b\u0006 \u0003\u0003\u0006\u0004\u0002\u0003\u0006\u0013\u0014\u0012\u0015\u000e\u0003\u0016\u0004\u0017\u0006\u0006\u0006\u0006 amount of \u00012.5 Lac, to the complainant. The loan was payable within one year but the same was not repaid. When the cheques so issued by the accused were presented for encashment, the same were dishonoured on account of ‘insufficient funds’. Thereafter complainant sent a legal notice to the accused but as the accused failed to pay the cheque amount despite receiving legal notice, he filed the complaint under Section 138 of the NI Act. 3. Learned trial Court rejected the complaint so filed by holding that the complainant had failed to prove that in fact accused had issued cheques in issue in lieu of an amount of \u000110 Lac advanced to the accused and further that the complainant had failed to lead clear, cogent and convincing evidence to bring home guilt of the accused. While arriving at the said conclusion, learned trial Court held that neither the complainant remembered the date when he had advanced the loan to the accused nor had he produced any material on record from which it could be inferred that any such amount in fact was advanced by him to the accused as loan. No written agreement in this regard was executed between the accused and the complainant nor the complainant had produced as witnesses, the persons, allegedly from whom, he had taken the money to lend the \u0001 same as loan to the accused. Learned trial Court also held that accused has successfully rebutted the presumption attached under Section 139 of the NI Act as not only the cross examination of the complainant revealed that the cheques in issue were in fact not filled by the accused but were probably filled by the complainant himself, he had also failed to establish from any record the factum of him advancing any loan amounting to \u000110 Lac to the accused, especially, when the complainant was an income tax payee for the last 42 years and the advancement of the said loan was not reflected in any records. 4. Feeling aggrieved, complainant has filed the present appeal. 5. I have heard learned Counsel for the parties and gone through the judgment passed by the learned trial Court. Admittedly, complainant happens to be an income tax assessee, who has been filing such returns for the last more than 42 years. Undisputedly, the complainant has not produced on record any document from which it could be inferred that any amount, as alleged by him, has been advanced by him to the accused nor any such transaction has been produced and proved by placing on record income tax record of the complainant. In fact, as per the \u0002 complainant, no record of this transaction was maintained by him, which is strange in the view of this Court. The source of the amount, which complainant gave as a loan to the accused, as per the complainant, was his wife and other friends. But, none of these persons, who were the source of the said amount which he loaned to the accused, have been examined as witness. There is no receipt of the loan amount. It has also come on record that except the signatures of the accused on the cheques in issue, the other writing was not his and the factum of the said writing being of the complainant stands admitted by the complainant. This gives credibility to the defence of the accused that the cheques were given as surety in lieu of a committee, which was being run by them. 6. Be that as it may, taking into consideration the fact that the complainant had not placed on record an iota of evidence to prove that he had ever advanced any amount to the accused, it cannot be said that the judgment of acquittal returned by learned trial Court in favour of the accused is bad. In my considered view, the findings returned by the learned trial Court are duly borne out from the records of the case and the same are thus neither perverse nor erroneous. The view which has been taken by the learned trial Court on \u0003 the basis of material on record is the correct view and as the complainant did not lead cogent and sufficient evidence to bring home guilt of the accused, it was but obvious for the learned trial Court to have had acquitted the accused. Therefore, as this Court does not finds any infirmity or perversity with the judgment passed by the learned trial Court, the appeal is dismissed. Pending miscellaneous application(s), if any, also stand disposed of. (Ajay Mohan Goel) Judge June 20, 2018. (narender) \u0004 "