2017 Supreme(HP) 923
CHANDER BHUSAN BAROWALIA
V. L. Snatu – Appellant
Versus
State of Himachal Pradesh – Respondent
Advocates Appeared:
For the Petitioners: Mr. R.K. Bawa with Mr. Ajay Kumar Sharma.
For the Respondents: Mr. Pushpinder Jaswal, Mr. Rajat Chauhan, Mr. Ashwani Pathak and Mr. V.S. Rathore.
Judgement Key Points
Case Overview
- Criminal Revision Petition under Sections 397/401 CrPC against conviction under Section 138 NI Act for issuing a cheque of Rs. 12,00,000/- that was dishonoured due to insufficient funds. [18000219410001][18000219410002]
- Petitioner (accused) was Branch Manager of H.P. State Co-operative Bank Ltd., Taklech Branch; convicted to 1 year RI and compensation of Rs. 16,00,000/- by trial court, upheld on appeal. [18000219410001]
Facts of the Case
- Complainant had cash credit facility of Rs. 1 crore against FDRs of Rs. 75 lakhs and Rs. 25 lakhs; accused unlawfully transferred Rs. 22,96,000/- from complainant's account to Ram Kumar's account without consent or written request. [18000219410001][18000219410006][18000219410007]
- Upon confrontation, accused admitted the transfer, apologized, and issued cheque No. 5555558 dated 1.11.2007 for Rs. 12,00,000/- (part of liability including interest) in discharge of the amount; cheque presented, dishonoured with "Exceeds Arrangements", legal notice issued but no payment made. [18000219410001][18000219410006][18000219410007][18000219410008]
- Bank witness confirmed no written request for transfer, only complainant authorized to withdraw; amount used to create FDRs in Ram Kumar's name, pledged as security for contract, interest paid to Ram Kumar. [18000219410006]
Arguments
- Accused: Cheque issued as security, no consideration; transfer authorized; money/FDRs still with bank, belongs to complainant; bank should return FDRs. [18000219410002][18000219410004]
- Complainant: Cheque for legally enforceable debt due to unauthorized transfer; presumption under NI Act favours holder; even security cheques enforceable if for discharge of liability. [18000219410003]
Court's Findings and Ratio
- Presumption under Sections 118/139 NI Act that cheque issued for consideration and discharge of debt/liability; execution admitted, burden shifts to accused to rebut by preponderance of probability. [18000219410006][18000219410007][18000219410011][18000219410013][18000219410015]
- Accused failed to rebut presumption: no evidence of authorization for transfer, admitted issuance of cheque, no proof it was mere security without consideration; transfer unauthorized misuse of position created enforceable liability. [18000219410006][18000219410007][18000219410008][18000219410013]
- Cheque enforceable even if claimed as security, as issued to discharge liability from misappropriated funds; accused's account lacked funds, notice served timely, complaint within limitation. [18000219410003][18000219410008]
- Complainant proved case beyond reasonable doubt; civil suit dismissal irrelevant to criminal liability under NI Act. [18000219410015]
Decision
- Revision petition dismissed; conviction and sentence upheld, no interference warranted. [18000219410016][18000219410017]
JUDGMENT :
Chander Bhusan Barowalia, J.
1. The present Criminal Revision Petition under Section 397 read with Section 401 of the Code of Criminal Procedure, is maintained against the judgment dated 21.6.2013, passed by learned Sessions Judge, (Forests) Shimla, in Criminal Appeal No. 1-S/10 of 13/10, dismissing the appeal of the petitioner and confirming the judgment of conviction and sentence passed by learned Judicial Magistrate 1st Class, Court No. I, Shimla, District Shimla, in Case No. 143/3 of 2008, dated 8.6.2010, whereby the petitioner was convicted and sentenced to suffer rigorous imprisonment for a period of one year for the offence punishable under Section 138 of the Negotiable Instruments Act and to pay compensation to the tune of Rs. 16,00,000/- to the complainant.
2. The key facts, giving rise to the present petition are that the complainant/respondent (hereinafter referred to as the ‘complainant’) maintained the complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘Act’) against the accused/petitioner (hereinafter referred to as the ‘accused’). As per the complainant, on 31.5.2007, accused being Branch Manager of H.P. State Co-o
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