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2018 Supreme(HP) 774
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SURESHWAR THAKUR, J.
Sh. Vishal Sharma - Appellant
Versus
Shashi Sharma - Respondent
Cr. Appeal No. 566 of 2012
Decided On : 20-11-2018
For the Appellant :Mr. Munish Kumar Gupta, Advocate.
For the Respondent:Mr. Jyotirmay Bhatt, Advocate.
The central legal point established in the judgment is the requirement for a dishonoured cheque to represent a legally enforceable debt or liability under Section 138 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Dishonoured Cheque - Section 138 - [Negotiable Instruments Act, Section 138] - The court evaluated the evidence and found that the dishonoured cheque was not issued towards any legally enforceable debt or liability inter se the accused and the complainant. The court also considered the exhaustion of the cheque book and the absence of evidence such as income tax returns and bank accounts of the partnership firm, leading to the conclusion that the issuance of the dishonoured negotiable instrument did not represent a legally enforceable debt or liability.
Fact of the Case:
The complainant financed the accused in a business agreement, and the accused failed to make the full payment, leading to the complaint under Section 138 of the Negotiable Instruments Act.
Finding of the Court:
The court found that the dishonoured cheque was not issued towards any legally enforceable debt or liability inter se the accused and the complainant, and upheld the judgment of acquittal by the trial court.
Issues: The main issue was whether the dishonoured cheque represented a legally enforceable debt or liability between the accused and the complainant.
Ratio Decidendi: The court's decision was based on the evaluation of evidence, including the exhaustion of the cheque book, absence of supporting evidence, and the conclusion that the dishonoured cheque did not represent a legally enforceable debt or liability.
Final Decision: The appeal was dismissed, and the impugned judgment of acquittal was affirmed and maintained.
SURESHWAR THAKUR, J.
1. The complainant/appellant herein, is aggrieved, by the judgment of acquittal pronounced by the learned Judicial Magistrate 1st Class, Bilaspur, H.P., upon, Case No. 200/2 of 2006, on 31.07.2012, hence has instituted there from, the, instant appeal before this Court.
2. The facts relevant to decide the instant case, are that during the year 2003, accused Shashi Sharma, who was a registered contractor of P.W.D., and, his close friend entered into an oral agreement for sharing the profits of the business, on 50% basis and as such, the complainant financed the accused and used to deal with all works issued upon the name of the accused. The complainant has submitted that from the year 2003 to 2006, both of them worked jointly and the accused was under a liability of Rs.6,55,000/-, which was to be paid by the accused to him upto August 2006, but he paid only Rs.1 lac through cheque bearing No.072936 dated 25.8.2006, and, for the balance payment he issued another cheque No.789288 dated 30.8.2006 for Rs.5,25,000/- to discharge his legal liability. The said cheque was presented by the complainant with the banker for encashment, but it was dishonoured on the ground of insufficient funds. Therefore, the complainant issued a legal notice to the accused on 7.10.2006 to which the reply was also filed by the accused, but he did not make the payment of any amount. Hence the complaint.
3. The learned trial Court, on, finding sufficient material on record, to proceed against the accused, hence, issued notice to the accused. On his appearance before the learned trial Court, notice of accusation for his committing an offence punishable under Section 138 of the Negotiable Instruments Act, stood hence put to him. In proof of the case, the complainant examined two witnesses. On conclusion of recording of the complainant's evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded by the learned trial Court, wherein he claimed innocence and pleaded false implication. However, he has examined two witnesses in his defence.
4. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent herein.
5. The complainant is aggrieved by the judgment of acquittal recorded in favour of the accused/respondent, by the learned trial Court. The learned counsel appearing for the complainant/appellant herein, has, concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court, standing, not based on a proper appreciation, by it, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by it, of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of conviction.
6. On the other hand, the learned counsel appearing for the accused/respondent herein, has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned trial Court, rather standing based on a mature and balanced appreciation by him, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.
7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.
8. Ex. CW1/B, embodies, the, dishonoured negotiable instrument. The mere factum of dishonour, of, the afore dishonoured negotiable instrument, does rear, a rebuttable presumption, qua, hence it standing issued towards, a, legally enforceable debt or liability, erupting inter se, the complainant and the accused. However, the afore presumption is rebuttable. The evidence to rebut the afore presumption is marshalable, from, Ex. D-2, (i) comprising the cheque book, unfolding qua two cheques respectively bearing No. 789287 and No. 78928
