Back
2016 Supreme(HP) 803
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
P.S. Rana, J.
Mulakh Raj Mehta - Appellant
Versus
Mehar Chand - Respondent
Cr. Appeal No. 301 of 2006
Decided On : 14-06-2016
Advocate Appeared:
For the Appellant : Mr. Sunil Mohan Goel
For the Respondent: Mr. Rajnish Maniktala
The dishonour of a cheque by a bank on the ground that the account was closed is an offence under Section 138 of the Negotiable Instrument Act, and there is a presumption in favor of the holder of the cheque unless the contrary is proved.
Headnote:
Negotiable Instrument Act 1881 - Cheque Dishonour - Section 138 - Section 140 - Section 118 - Section 139
Fact of the Case:
Complainant supplied building material to accused worth Rs.75000 for construction of a house. Accused issued a cheque which was dishonoured. Complainant filed a complaint under Section 138 of Negotiable Instrument Act 1881. Trial Court dismissed the complaint and acquitted the accused. Complainant appealed against the judgment.
Finding of the Court:
The court found that the cheque was dishonoured and the accused failed to make the payment despite the demand notice. The court accepted the appeal, set aside the judgment of the Trial Court, and remitted the case back for further inquiry in accordance with the law.
Issues: Whether the appeal filed by the appellant is liable to be accepted as mentioned in the memorandum of grounds of appeal?
Ratio Decidendi: The court held that the dishonour of a cheque by a bank on the ground that the account was closed is an offence under Section 138 of the Negotiable Instrument Act. The court also emphasized the presumption in favor of the holder of the cheque unless the contrary is proved.
Final Decision: The appeal was accepted, the judgment of the Trial Court was set aside, and the case was remitted back for further inquiry in accordance with the law.
P.S. Rana, J.
Order of limited remand Present appeal is filed against the judgment dated 20.6.2006 passed by learned Additional Chief Judicial Magistrate Baijnath District Kangra in Criminal complaint No. 67-III/2004 title Mulakh Raj Mehta vs. M.C. Sharma.
Brief facts of the case
2. Mulakh Raj complainant filed complaint under Section 138 of Negotiable Instrument Act 1881 pleaded therein that complainant is dealing with supply of building material for construction of houses at Baijnath Tehsil Baijnath District Kangra H.P. It is pleaded that complainant supplied building material to accused worth Rs.75000/- (Rupees seventy five thousand only) for construction of a house situated at Sungal Tehsil Baijnath District Kangra H.P. It is pleaded that accused issued cheque No. 988346 dated 25.5.2001 in favour of complainant. It is pleaded that complainant presented the above said cheque and said cheque was dishonoured on account of “Account closed”. It is pleaded that thereafter complainant issued a demand notice through Advocate and demand notice was received by accused. It is pleaded that accused did not pay the amount despite demand notice. It is pleaded that accused be punished under Nagotiable Instrument Act 1881.
3. Notice of Accusation was put to accused by learned Judicial Magistrate Baijnath under Section 138 of Negotiable Instrument Act 1881. Accused did not plead guilty and claimed trial.
4. Complainant examined two witnesses in support of his case and also tendered documentaries evidence. Accused did not lead any defence evidence. Learned Trial Court dismissed the complaint and acquitted the accused.
5. Feeling aggrieved against the judgment passed by learned Trial Court complainant Mulakh Raj filed present criminal appeal.
6. Court heard learned Advocate appearing on behalf of the appellant and learned Advocate appearing on behalf of the respondent/accused and also perused the entire record carefully.
7. Following points arise for determination in present appeal:-
Point No.1 Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal?
Point No.2 Final Order.
8. Findings upon Point No.1 with reasons
8.1. CW1 Mulakh Raj has stated that he used to supply building material for construction and he is running shop at Baijnath District Kangra (H.P.). He has stated that he has supplied building construction material to the tune of Rs.75000/- (Rupees seventy five thousand) to accused. He has stated that accused issued cheque to him in consideration amount of Rs.25000/- (Rupees twenty five thousand). He has stated that cheque was presented for encashment and same returned with remarks “Account closed”. He has stated that demand notice was also given to accused but despite demand notice accused did not pay the amount. He has denied suggestion that he has filed the present complaint just to harass the accused. He has denied suggestion that complainant has himself admitted balance of Rs.3845/- (Rupees three thousand eight hundred forty five).
8.2 CW2 Ashok Kumar posted as Clerk in Bank has stated that he has brought the summoned record. He has stated that cheque was presented before bank for encashment and same was sent to Bank of Baroda New Delhi for collection. He has stated that memo Ext.CW2/C was received with report that accused has closed the account. He has stated that record relating to bank account of accused is available in Bank of Baroda New Delhi.
9. Following documentaries evidence adduced by complainant.
(1) Ext.CW2/A is cheque issued to the tune of Rs.25000/- (Rupees twenty five thousand) issued in favour of Mulakh Raj on 25.5.2001 by accused.
(2) Ext.CW1/A is postal receipt.
(3) Ext.CW1/B is legal notice issued to accused under Section 138 of Negotiable Instrument Act 1881.
(4) Ext.CW2/C is memorandum issued by Bank of Baroda New Delhi with remarks ‘Account closed’.
10. Statement of accused recorded under Section 313 of Code of Criminal Procedure by learned Trial Court. Accused has
