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HIMACHAL PRADESH HIGH COURT
Chander Bhusan Barowalia, J.
Gurdas —Appellant
versus
Het Ram —Respondent
Cr. Appeal No.356 of 2006
Decided on 24.4.2018
Counsel for the Parties:
For the Appellant:Mr. Vivek Singh Thakur, Advocate
For the Respondent:Mr. Arjun Lal, Advocate
IMPORTANT POINT
Wherecheque was issued by firm in favour of complainant, accused is not liable to pay money in individual capacityunder Section 138 of N.I. Act.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 141—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Appeal against acquittal—Bank has returned cheque only on the ground that account is closed but there is nothing mentioned by Bank whether signatures are correct or not and whether signatures are of accused or not—Complainant has established that cheque was presented by him in bank and it was dishonoured with report “account closed” and thereafter complainant served notice upon accused—Evidence produced by complainant shows that cheque was issued by firm in favour of complainant, however so far as liability under Section 138 of N.I. Act is concerned, accused is not liable to pay money in individual capacity—There is even no mention in complaint as to who had issued and signed cheque—Complainant has failed to bring home guilt of accused under Section 138 of N.I. Act and complaint filed against accused in his individual capacity is not maintainable—Appeal dismissed. (Paras 11, 14, 15 and 16)
Result: Appeal dismissed.
Chander Bhusan Barowalia, J.—The present criminal appeal, under Section 378 of the Code of Criminal Procedure, has been maintained by the appellant/complainant (hereinafter to be called as “the complainant”), against the judgment of acquittal, dated 14.08.2006, passed by learned Chief Judicial Magistrate, Kullu, District Kullu, H.P., in Complaint No. 279-1/2001, under Section 138 of the Negotiable Instruments Act (hereinafter to be called as “N.I. Act”)
2. The key facts, giving rise to the present appeal are that the complainant filed a complaint against the respondent/accused (hereinafter to be called as “the accused”) under Section 138 of the N.I. Act and alleged that he was the agent of M/s Arjun Kumar Dhanna Ram, Fruit Commission Agents, Azadpur, New Delhi and was dealing in fruits business and the accused was the fruit contractor, who used to take the orchards of various persons on contract basis and used to sell the fruits through different fruits commission agents including the firm of the complainant. The complainant being the agent of the aforesaid firm used to give money in advance to different fruit contractors and the accused also used to take advances from the complainant on different occasions. Though, the said accounts used to be settled all the time, however, the accused failed to adjust the advance of Rs.5,50,000/- taken by the complainant and in order to discharge his liability, he issued a cheque of Rs.5,50,000/- bearing cheque No. 378402, dated 25.09.2001 in favour of the complainant drawn at Uco Bank, Manali Branch, being the proprietor of the Shobha Apples Garden. However, when the complainant presented the said cheque for encashment through his banker Uco Bank, Raison, the cheque was dishonoured, vide memo, dated 06.10.2001, on the ground that the account has already been closed by the accused. After receiving intimation vide memo, dated 16.10.2001, the complainant served a registered notice, dated 20.05.2001 upon the accused, which was received by him on 25.10.2001, intimating the accused qua dishonouring of the cheque and asked him to make the aforesaid payment within 15 days from the receipt of the said notice. However, despite aforesaid notice, the accused did not make the payment within 15 days, which lead the complainant to file a complaint against the accused, under Section 138 of the N.I. Act.
3. In order to prove its case, the complainant has examined as many as two witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he pleaded his innocence and denied that he had issued the cheque in question, in favour of the complainant. Initially, the accused intended to lead defence evidence, however later on, no defence evidence was intended to be given by the accused. The learned trial Court, vide its judgment, dated 14.08.2006, acquitted the accused for the commission of offence punishable under Section 138 of the N.I. Act. Hence the present appeal.
4. I have heard the learned counsel for the parties and gone through the record carefully.
5. Mr. Vivek Singh Thakur, learned counsel for the appellant has argued that the judgment of acquittal, passed by the learned trial Court, is without appreciating the facts that the issuance of cheque has been admitted and in these circumstances, the presumption will go to show that it was issued for the consideration. In support of his arguments, learned counsel for the appellant has placed reliance upon the decision of Hon’ble Supreme Court, rendered in Sheoratan Agarwal and Another vs. State of Madhya Pradesh, (1984) 4, SCC 352 and the decision rendered by a coordinate Bench of this Court in Satinder Kapur vs. V.K. Sehgal, (1999) 3, SLC 216. On the other hand, Mr. Arjun Lal, learned counsel for the respondent has argued that there is nothing on record to show that cheque was issued to the complainant, as the dealings were being done by the complainant on behalf of the firm and no statement of accounts of the firm has been produ
