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2016 Supreme(HP) 545
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
P.S. Rana, J.
Hamid Mohammad S/o Sh. Sarif Mohammad - Revisionist
Versus
Jaimal, S/o Sh. Hari Dass & another - Non-revisionists.
Cr. Revision No. 262 of 2014
Decided On : 23-4-2016
For the revisionist:Mr. Suneel Awasthi, Advocate.
For Non-revisionist No.1:Mr. R.K. Gautam, Sr. Advocate with Mr. Gaurav Gautam, Advocate.
For Non-revisionist No.2.:Mr. M.L. Chauhan, Additional Advocate General.
The legal presumptions under the Negotiable Instruments Act 1881, particularly Sections 138, 118, and 139, play a crucial role in establishing liability for dishonor of cheques and supporting the claims of the holder of the cheque.
Headnote:
Negotiable Instruments Act 1881 - Dishonor of Cheque - Section 138
Fact of the Case:
The complainant obtained a loan from the bank and lent a sum to the accused, who issued a cheque that was dishonored due to insufficient funds. The complainant then issued a demand notice, but the accused did not repay the loan amount.
Finding of the Court:
The court found that the evidence presented, including witness testimonies and documentary evidence, supported the complainant's claim. The court also held that the accused failed to rebut the legal presumptions under the Negotiable Instruments Act 1881.
Issues: The issues included the validity of the cheque, service of the legal notice, and the sufficiency of the evidence presented by the complainant.
Ratio Decidendi: The court relied on the provisions of the Negotiable Instruments Act 1881, particularly Sections 138, 118, and 139, to establish the liability of the accused for dishonoring the cheque and the legal presumptions in favor of the holder of the cheque.
Final Decision: The criminal revision petition was dismissed, affirming the judgment and sentence passed by the trial court and the appellate court.
P.S. Rana, J.
Present revision petition is filed against judgment of learned Sessions Judge Solan District Solan H.P. announced in Criminal Appeal No. 12-NL/10 of 2012 title Hamid Mohammad vs. Jaimal wherein learned Appellate Court affirmed judgment and sentence passed by learned Trial Court. Brief facts of the case:
2. Jaimal son of Hari Dass filed complaint under Section 138 of Negotiable Instruments Act 1881 pleaded therein that complainant obtained loan from bank for his personal use and after obtaining loan from bank accused approached complainant and told complainant that accused was in dire need of money. It is pleaded that complainant granted loan to accused to the tune of Rs. 93,000/- (Rupees ninety three thousand) and accused promised that he would pay back the loan amount along with interest within a period of one year. It is further pleaded that complainant approached the accused many times to repay the amount of loan but accused did not pay the amount of loan to complainant. Thereafter complainant convened a Panchayat in which accused acknowledged his liability to repay the loan amount and accused issued cheque No. 0005449 dated 30.10.2008 to the tune of Rs. 1,08,000/- (Rupees one lac eight thousand) in favour of complainant which was payable at Bank of India Branch Panjehra. It is further pleaded that complainant presented the cheque for encashment but the cheque was dishonored on account of insufficient fund. It is further pleaded that thereafter complainant issued demand notice to accused under Section 138 of Negotiable Instruments Act 1881 and notice was sent through registered AD and under postal certificate. It is further pleaded that after receipt of demand notice accused did not pay loan amount. Punishment of accused under Section 138 of the Negotiable Instruments Act 1881 sought.
3. Learned Trial Court after recording preliminary evidence of complainant summoned accused and thereafter notice of accusation was issued to complainant by learned trial Court under Section 138 of the Negotiable Instruments Act 1881. Accused person did not plead guilty and claimed trial. Complainant examined two witnesses CW-1 and CW-2. Statement of accused recorded under Section 313 Code of Criminal Procedure. Accused did not lead any defense evidence.
4. Learned Trial Court on 16.10.2012 convicted and sentenced the revisionist for simple imprisonment for a period of six months. Learned Trial Court further directed that convict would pay compensation to complainant amounting to Rs. 1,20,000/- (Rupees one lac twenty thousand). Feeling aggrieved against judgment and sentence passed by learned Trial Court accused filed appeal before learned Sessions Judge Solan and learned Sessions Judge Solan on dated 17.4.2014 dismissed the appeal filed by the revisionist. Feeling aggrieved against the aforesaid judgment of learned Trial Court and learned Appellate Court revisionist has filed the present revision petition.
5. Court heard learned Advocates appearing on behalf of revisionist and non-revisionists and Court also perused entire record carefully.
6. Following points arise for determination:
1) Whether judgment and sentence passed by learned Trial Court and affirmed by learned first Appellate Court are perverse and based upon non appreciation of oral as well as documentary evidence and whether learned Trial Court and learned Appellate Court have committed illegality as mentioned in memorandum of criminal revision petition?
2. Final order.
7. Findings upon point No.1 with reasons:
7.1 CW-1 Kripa Shankar Saran Manager Bank of India Panjehra District Solan H.P. stated that Ext. C-3 is issued by Bank of India. He has stated that statement of accounts of accused is Ext. C-A which is prepared as per Bank Book Evidence Act which is correct as per original record. He has admitted that complainant Jaimal took loan from Bank of India Panjehra Branch. He has stated that accused Hamid Mohammad was guarantor and he has signed many documents as guara
