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2017 Supreme(HP) 75
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Gulab Singh Shandil - Petitioner
Versus
Vidya Sagar Sharma - Respondent
Cr. Revision No. 394 of 2015
Decided On : 10-03-2017
For the Petitioner: Shri Vikas Chandel
For the Respondent: Shri Hamender Chandel
The main legal point established in the judgment is that the accused's liability under Section 138 of the Negotiable Instruments Act was upheld based on the successful proof of the elements of the offense by the complainant and the lack of supporting evidence for the accused's defense.
Headnote:
Negotiable Instruments Act - Conviction under Section 138 - 138 - The court discussed the evidence and documents presented, including the agreement to sell, and found that the accused had issued cheques in discharge of his liability to repay the amount advanced by the complainant. The court upheld the judgments of conviction by the lower courts, concluding that there was no mis-appreciation of evidence and that the petitioner's defense was not supported by the evidence.
Fact of the Case:
The complainant alleged that the accused, with whom he had friendly relations, had borrowed Rs. 4 lacs and issued two cheques as security, which were later dishonored. The trial court convicted the accused under Section 138 of the Negotiable Instruments Act.
Finding of the Court:
The court found that the complainant had successfully proved that the accused issued the cheques in lieu of the amount borrowed, and the defense put forth by the accused was not supported by the evidence.
Issues: The main issue was whether the accused was liable under Section 138 of the Negotiable Instruments Act for dishonoring the cheques issued as security for a loan.
Ratio Decidendi: The court held that the evidence presented by the complainant successfully proved all the elements of Section 138 of the Act, and the defense put forth by the accused was not supported by the evidence.
Final Decision: The petition was dismissed, and the accused was directed to surrender himself before the trial court to serve out the sentence.
Sandeep Sharma, J.
Instant criminal revision petition filed under Sections 397 and 401 Cr.P.C. is directed against judgment dated 7.9.2015, passed by learned Sessions Judge, Solan in criminal appeal No. 1-S/10 of 2015, affirming judgment of conviction dated 27.11.2014 recorded by learned Judicial Magistrate 1st Class, Solan, District Solan in criminal complaint No. 193/3 of 2014/10, whereby learned Court below, while holding accused/petitioner guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as the Act) convicted and sentenced him to undergo simple imprisonment for three months and to pay fine amount of Rs. five lacs as compensation to the complainant.
2. Briefly stated the facts, as emerged from record, are that respondent (hereinafter referred to as the complainant) filed a complaint under Section 138 of the Act in court of learned Judicial Magistrate 1st Class, Solan, District Solan H.P. alleging therein that since accused/petitioner had friendly relations with complainant, therefore, he, on his request, advanced Rs. Four lacs to petitioner on account of his personal requirement. Complainant further alleged that accused promised the complainant that amount would be repaid in the month of January, 2010 and accordingly, with a view to discharge his liability, accused/petitioner issued two cheques bearing Nos. 964173 dated 6.1.2010 and 964172 dated 7.1.2010 amounting to Rs.2 lacs each drawn on UCO Bank, Solan Branch. However, the fact remains that on presentation of the aforesaid cheques, having been issued by accused, the same were dishonoured by Bank of Baroda vide memo dated 7.1.2010 on account of insufficient funds. Complainant, on receipt of aforesaid memo, got a legal notice issued to accused/petitioner calling upon him to make payment good qua cheques but since no payment was made by accused, complainant was compelled to initiate proceedings under Section 138 of the Act against the accused.
3. Learned trial Court, on the basis of material adduced on record by respective parties, held the accused/petitioner guilty of having committed an offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him as per description given hereinabove.
4. Accused/petitioner being aggrieved and dissatisfied with judgment of conviction recorded by learned Court below, preferred an appeal in the Court of learned Sessions Judge, Solan which came to be registered as Cr. Appeal No. 1-S/10 of 2015. Learned Sessions Judge, Solan vide judgment dated 7.9.2015 dismissed the appeal, as a result of which conviction recorded by learned Court below came to be upheld.
5. In the aforesaid background, accused/petitioner approached this Court in instant proceedings seeking his acquittal after setting aside the judgment of conviction recorded by learned Courts below.
6. This Court vide order dated 4.11.2015 suspended the substantive sentence subject to the petitioner’s furnishing a personal bond to the tune of Rs.50,000/- (Rupees fifty thousand only) with two sureties in the like amount to the satisfaction of learned trial Court. Vide aforesaid order, accused/petitioner was also directed to deposit fine amount to the tune of Rs.5 lacs but same was not deposited by accused/petitioner with learned trial Court. However, the fact remains that despite order having been passed qua suspension of sentence, accused/petitioner neither furnished bail bonds nor deposited the amount of fine. Subsequently, on 18.10.2016 learned counsel representing the petitioner stated before the Court that there is possibility of amicable settlement between the parties and accordingly, matter was adjourned for 8.11.2016 with direction to parties to remain present in Court. However, the accused/petitioner failed to appear before the Court but this Court, on vehement request having been made by learned counsel representing the petitioner, adjourned the matter for 8.11.2016 dire
