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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SANDEEP SHARMA, J.
Kediya Ram Gandhar s/o of Sh. Mogi ram – Petitioner
Versus
Paramjeet Verma s/o Sh. Prem Pal Verma - Respondent
Cr. Revision No. 58 of 2019
Decided On : 08-08-2022
Criminal Procedure Code, 1973 – Section 397 - Negotiable Instruments Act, 1881 – Section 138 – Dishonoured of Cheque – Convicted – Challenged - Complainant alleging that he lent amount to accused on his request, who with a view to discharge his liability, issued cheque on Bank. However, fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient funds in account of accused - Section 118 and 139 of Act clearly provide that it shall be presumed, unless contrary is proved, that holder of a cheque received the cheque of the nature referred to in section 138 for discharge, in whole or in part, of any debt or other liability. (Para 9)
Finding of the court: True, it is that to rebut aforesaid presumption accused can always raise probable defence either by leading some positive evidence or by referring to material, if any adduced on record by complainant - Since there is no denial on behalf of accused with regard to issuance of cheque and signatures thereupon, plea taken by him with regard to issuance of blank security cheque is of no relevance. Burden is always on drawer of cheque to establish that date, amount and payee’s name are written by somebody else, without knowledge and consent of drawer. There is presumption in favour of holder of cheque that cheque was issued in discharge of legally enforceable liability/debt - Court finds that complainant proved on record that he lent amount to accused, who with a view to discharge his liability, issued cheque, but same was dishonoured on its presentation, as such, complainant had no option but to institute proceedings under S. 138 of Act. If evidence, be it ocular or documentary adduced on record by complainant is perused, it can be safely concluded that complainant has proved all basic ingredients as required to be proved to bring case within ambit of S. 138 of Act - Conviction upheld.
Result: Petition dismissed.
ORDER :
1. Instant criminal revision petition filed under S. 397 CrPC, lays challenge to judgment dated 8.1.2019 passed by learned Additional Sessions Judge, Sirmaur at Nahan, Himachal Pradesh camp at Paonta Sahib, District Sirmaur, Himachal Pradesh, in Cr. Appeal No.75-N/10 of 2017, affirming judgment of conviction and order of sentence dated 11.9.2017, passed by learned Judicial Magistrate First Class, Court No.2, Paonta Sahib, District Sirmaur, Himachal Pradesh in Cr. Case No. 109/3 of 2012, whereby learned trial Court, while holding petitioner-accused(hereinafter, ‘accused’) guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, ‘Act’) convicted and sentenced him to under rigorous imprisonment for one year and pay a compensation to the tune of Rs. 1.00 Lakh to the respondent/complainant (hereinafter, ‘complainant’).
2. Precisely, the facts of the case, as emerge from the record, are that the complainant instituted proceedings under S.138 of the Act in the court of learned Judicial Magistrate First Class, Court No.2, Paonta Sahib, alleging therein that on 29.3.2012, he lent a sum of Rs. 50,000/- to the accused on his request, who with a view to discharge his liability, issued cheque bearing No. 024027 dated 2.4.2012, for a sum of Rs. 50,000/-, drawn on State Bank of India, Branch Rajban. However, the fact remains that the aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused. Since despite receipt of legal notice, accused failed to make the payment of cheque amount within the stipulated time, complainant instituted proceedings under S. 138 of the Act in the competent court of law, which, after hearing the parties and appreciating the evidence led on record, held accused guilty of having committed offence punishable under S. 138 of the Act, and accordingly convicted and sentenced as per description given above.
3. Being aggrieved and dissatisfied with judgment of conviction and order of sentence passed by learned trial Court, accused preferred an appeal before learned Additional Sessions Judge Sirmaur camp at Paonta Sahib, which was dismissed vide judgment dated 8.1.2019, as consequence of which, judgment of conviction and order of sentence passed by learned trial Court, came to he upheld.. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal, after setting aside judgments of conviction and order of sentence.
4. Vide order dated 4.2.2019, this court suspended substantive sentence imposed by learned trial Court upon the accused subject to petitioner’s depositing entire amount of compensation and furnishing personal bonds in the sum of Rs.20,000/- within six weeks. However, aforesaid order never came to be complied with. Only a sum of Rs. 50,000/- came to be deposited on behalf of the accused.
5. On 18.7.2022, this court granted last opportunity of two weeks to the petitioner to make payment of the balance amount, but the fact remains neither he came present in the court nor deposited the balance amount. Learned counsel for the petitioner states that since despite repeated opportunities, petitioner is not coming forward to deposit remaining amount, this court may dispose of the present petition on merit.
6. I have heard learned counsel for the parties and perused material available on record.
7. Having heard learned counsel for the parties and perused material available on record vis-à-vis reasoning assigned in the judgments of conviction and order of sentence impugned in the petition at hand, this court finds no force in the submission of learned counsel for the accused that the learned courts below have failed to appreciate the evidence in its right perspective, as a consequence of which findings contrary to record have come to the fore. Material available on record reveals that neither issuance of cheque nor signatures thereupon have been denied b
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