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2012(1) Bankmann 515 (P&H)
PUNJAB AND HARYANA HIGH COURT
A.N. Jindal, J
Harbhajan Singh Ahuja —Petitioner
versus
Sukhdev Singh and Anr. —Respondents
Criminal Revision No. 960 of 2011 (O&M)
Decided on 6.9.2011
For the Petitioner:Sandeep S. Majithia, Advocates.
For the Respondent No.1:A. S. Manaise, Advocate.
For the Respondent No. 2: Baljinder Singh, Additional AG., Punjab.
IMPORTANT POINT
As presumption is attached to the fact that if the cheque was issued then it will be presumed that it was issued for consideration and in those circumstances, it was not necessary for the complainant to prove that there was some existing liability.
Headnote:(i) Negotiable Instruments Act, 1881—Sections 138 and 139—Cheque for Rs.2,00,000 drawn and discharge of family loan bounced—Conviction by Courts below—Revision—Contention that complainant had failed to produce books of account was of no help when no such question was put in cross-examination—Presumption was in favour of complainant and it was not necessary for him to prove that there was some existing liability—Re-appreciation of evidence was not permitted in exercise of revisional jurisdiction—Conviction and sentence of one year imprisonment and fine called for no interference. (Paras 10 to 14)
(ii) Criminal Procedure Code, 1973—Sections 397 and 401—Scope of interference by High Court in exercise of revisional jurisdiction is limited to exceptional cases. (Para 15)
A.N. Jindal, J.—This petition has arisen out of the judgment dated 20.4.2011 passed by the learned Additional Sessions Judge, Jalandhar dismissing the appeal against the judgment dated 29.5.2009 convicting and sentencing the accused/petitioner (herein referred as the petitioner) to undergo R.I. for one year and to pay a fine of Rs.2,000 under Section 138 of the Negotiable Instruments Act.
2. The petitioner had raised a family loan of Rs.2,00,000 from the complainant/respondent (herein referred as the respondent), and in order to discharge debt, the petitioner had issued a cheque No. 071350 dated 13.8.2006 for a sum or Rs.2,00,000 drawn on the Bank of Punjab Ltd. MGN Public School, Adarsh Nagar, Jalandhar out of his bank account No.2188. On tendering of the said cheque, it was returned with the remarks ‘insufficient funds’ vide memo dated 15.9.2006. Consequently, the accused/ respondent was served with a legal notice dated 25.9.2006 which was not replied, hence the complaint was filed by him against the petitioner.
3. After recording preliminary evidence, the petitioner was summoned and was issued notice of accusation which was contested by him. During trial, the complainant led oral as well as documentary evidence.
4. When examined under Section 313 Cr.PC, the petitioner denied all the incriminating circumstances appearing against him and pleaded his false implication. In his defence, he examined his son Bhupinder Singh (DW1) in order to contend that his son had taken a loan of Rs.20,000 and he had issued a blank cheque as security and loan was repaid but the cheque was not returned. The trial court while observing that Bhupinder Singh (DW1) is not a truthful witness and his statement is not enough to shift the onus, convicted the petitioner. His appeal was also dismissed. The complainant/respondent while proving the receipt of loan raised by the petitioner has also proved issuance of cheque (Ex. C1) by the petitioner. He has proved the memo dated 15.9.2006 which was received from the bank with the remarks ‘insufficient funds’ vide memo Ex. C2. Besides proving notice Ex. C3, he has also proved postal receipt Ex. C4 and UPC Receipt Ex. C5.
5. The petitioner, on the other hand, has failed to rebut the presumption as envisaged under Section 139 of the Act by leading any cogent and convincing evidence that the loan was not advanced to him and the cheque was not m discharge of any legally enforceable liability.
6. To the contrary, his stand only is that he had signed the cheque when it was blank and it was by way of security against the loan taken by his son Bhupinder Singh, however, after the loan was repaid, cheque was not returned by the complainant to him.
7. Both the courts below have returned findings of fact that the cheque was issued for discharging legally enforceable liability and he has failed to shift the onus.
8. The judgment delivered by the Apex Court in case Krishna Janardhan Bhat v. Dattatraya G. Hege1, as relied upon by the counsel for the petitioner is distinguishable and is not applicable to the facts of the present case.
9. The arguments that the complainant does not state if he issued the cheque in his personal capacity or as proprietor of the business concern and that he did not produce the books of accounts, are of no consequence as neither any question was asked during the cross-examination to the respondent nor such documents were sought to be produced in the present case.
10. I also do not find any merit in the contention raised by the learned counsel for the petitioner that the onus lay heavily upon the complainant to prove that the cheque was issued for legally enforceable liability. As presumption is attached to the fact that if the cheque was issued then it will be presumed that it was issued for consideration and in those circumstances, it was not necessary for the complainant to prove that there was some existing liability. It was observed in case M/s MMTC Ltd & Anr. v. M/s Medchl Chemicals
