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2016 Supreme(HP) 299
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
P.S. Rana, J.
Banshi Ram - Revisionist
Vs.
Ram Chand - Non-revisionist
Criminal Revision Petition No. 229 of 2015
Decided On : 13-04-2016
For the Revisionist :Mr. T.S. Chauhan, Advocate.
For the Non-revisionist :Mr. Vikas Rathore, Advocate.
The court emphasized the essential elements of a complaint under Section 138 of the Negotiable Instrument Act 1881 and the presumption of dishonor of the cheque.
Headnote:
Negotiable Instrument Act 1881 - Debt Recovery - Section 138
Fact of the Case:
The complainant, a vehicle financing business owner, lent money to the accused, who failed to repay the debt. The accused issued a cheque that bounced due to insufficient funds. The complainant filed a complaint under Section 138 of the Negotiable Instrument Act 1881.
Finding of the Court:
The court found the accused guilty under Section 138 of the Negotiable Instrument Act 1881 based on the evidence of the complainant and a bank manager. The court rejected the defense's claims of obtaining the cheque as security and issuing it to a third party.
Issues: The issues included the validity of the judgments of the trial and appellate courts, the credibility of the evidence, and the liability of the accused under Section 138 of the Negotiable Instrument Act 1881.
Ratio Decidendi: The court held that the complainant had proven the essential elements of a complaint under Section 138, and the accused failed to rebut the presumption of dishonor of the cheque. The court also rejected the defense's claims of obtaining the cheque as security and issuing it to a third party.
Final Decision: The revision petition was dismissed, and the case was sent back to the trial court and appellate court.
P.S. Rana, J.
Present criminal revision petition is filed under Sections 397 and 401 Cr.P.C. against judgment dated 23.12.2013 passed by learned trial Court in RBT No. 39/3 of 2011/10 title Ram Chand vs. Banshi Ram and affirmed by learned Appellate Court vide judgment dated 26.2.2015 in criminal appeal No. 8/10 of 2014 title Bansi Ram vs. Ram Chand.
Brief facts of the case
2. Brief facts of case are that Ram Chand complainant filed complaint under Section 138 of Negotiable Instrument Act 1881 pleaded therein that complainant is proprietor of M/s Ankit Hire Purchase Private Limited Bharari Tehsil Ghumarwin District Bilaspur H.P. It is pleaded that complainant is running the business of financing the vehicles providing loan. It is pleaded that in the month of June 2009 accused approached the complainant for debt and complainant gave a sum of Rs.150000/- (Rupees one lac fifty thousand only) as loan to accused. It is pleaded that accused assured to return the amount on or before March 2010. It is pleaded that accused did not return the loan amount and thereafter complainant approached the accused personally and accused issued cheque bearing No. 5025481 payable in H.P. State Cooperative Bank Branch at Ghumarwin District Bilaspur H.P. Thereafter complainant presented the cheque for encashment before H.P. State Cooperative Bank Branch at Ghumarwin but cheque was returned with memorandum of bank “Insufficient funds”. It is pleaded that thereafter complainant served the legal notice upon accused under Section 138 of Negotiable Instrument Act 1881 but despite notice accused did not pay the debt amount. It is pleaded that accused be sent to imprisonment and fine to the tune of Rs. 300000/- (Rupees three lacs only) be also imposed upon the accused.
3. Notice of accusation was given to accused by learned trial Court on 1.10.2011 under Section 138 of Negotiable Instrument Act 1881. Accused did not plead guilty and claimed trial.
4. Complainant examined two witnesses i.e. CW1 Ram Chand and CW2 Sukh Dev and accused also examined one defence witness DW1 Labh Singh.
5. Learned trial Court on 23.12.2013 convicted the revisionist under Section 138 of Negotiable Instrument Act 1881 and sentenced the convict to undergo simple imprisonment for three months. Learned trial Court also ordered that convict would pay compensation of Rs.150000/- (Rupees one lac fifty thousand only) to complainant.
6. Feeling aggrieved against the judgment and sentence passed by learned trial Court and affirmed by learned Appellate Court revisionist filed the present revision petition.
7. Court heard learned Advocate appearing on behalf of revisionist and learned Advocate appearing on behalf of non-revisionist and Court also perused the entire record carefully.
8. Following points arise for determination in present criminal revision petition:-
Point No.1
Whether judgments of learned trial Court and learned Appellate Court are perverse and based upon non-appreciation of oral and documentary evidence as alleged in memorandum of grounds of criminal revision petition and whether learned trial Court and learned Appellate Court have committed illegality?
Point No. 2
Final Order.
9. Findings upon Point No. 1 with reasons
9.1 Complainant Ram Chand filed affidavit Ext.CW1/A in examination in chief. There is recital in affidavit Ext.CW1/A that deponent is proprietor of M/s Ankit Hire Purchase Private Limited Bharari Tehsil Ghumarwin District Bilaspur H.P. and deponent is running the business of financing the vehicles loan etc. There is recital in Ext.CW1/A that in the month of June 2009 accused being fast friend of deponent approached the deponent for debt and complainant in good faith advanced Rs.150000/- (Rupees one lac fifty thousand only) as loan to accused without interest. There is recital in Ext.CW1/A that accused assured to return the debt amount on or before March 2010. There is further recital in Ext.CW1/A that accused did not return the debt amount and thereafter deponent approac
