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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Sandeep Sharma, J.
Padam Chand - Petitioner
Vs.
Ms. Golf Link Finance and Resorts Pvt. Ltd. - Respondent
Criminal Revision No. 529 of 2022
Decided On : 25-04-2023
Criminal Procedure Code, 1973 - Sections 397, 401 - Negotiable Instruments Act, 1881 - Sections 138, 139 - Discharge liability - Failed to make payment - Appeal against conviction - Accused approached Court praying to set-a-side judgment of conviction and order of sentence recorded by court – Defence set up by accused that he had cleared entire loan liability never came to be proved on record in accordance with law - Para 12.
Finding of the Court:
Complainant successfully proved all ingredients of Section 138 of Act - He successfully proved on record that before instituting proceedings under Section 138 of Act, it had served legal notice upon accused, thereby calling upon him to make payment good - Since factum with regard to advancement of loan stands established on record and same was never repaid, cheque issued for discharge of lawful liabilty could be well presented by complainant before bank concerned for encashment - After having carefully examined evidence in b present case, this Court is unable to find any error of law as well as fact, if any, committed by courts below while passing impugned judgments, there is no occasion, whatsoever, to exercise revisional power - Court sees no valid reason to interfere with well reasoned judgments recorded by courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld.
Result: Petition dismissed.
JUDGMENT :
Sandeep Sharma, J.
Instant criminal revision petition filed under Section 397 read with Section 401 Cr.PC, lays challenge to judgment dated 30.7.2022, passed by the learned Additional Sessions Judge-I, Shimla, District Shimla, H.P., in Criminal Appeal No. 9-S/10 of 2020, affirming the judgment of conviction and order of sentence dated 26.11.2021/28.12.2021, in criminal Case No. 11-3 of 2016, passed by the learned Additional Chief Judicial Magistrate-I, Shimla, District Shimla, H.P., whereby the learned trial Court while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 2,00,000/- to the complainant.
2. Precisely, the facts of the case, as emerge from the record are that respondent/complainant lodged complaint under Section 138 of the Act before the learned ACJM, Shimla, stating therein that it had advanced a loan to the tune of Rs. 1.00 lac to the accused, who with a view to discharge his liability issued cheque amounting to Rs. 1,15,750/-, but fact remains that aforesaid cheque on its presentation to the bank concerned, was dishonoured. Since accused failed to make the payment good within the stipulated period despite his having received legal notice issued to him, complainant had no option but to initiate proceedings under Section 138 of the Act in the competent court of law.
3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 26.11.2021/28.12.2021, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above.
4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, petitioner-accused preferred an appeal before the learned first appellate Court, but same was dismissed vide judgment dated 30.7.2022. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein to setaside the judgment of conviction and order of sentence recorded by the court below.
5. Vide order dated 27.9.2022, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing 50% of the compensation amount within four weeks, however, fact remains that aforesaid order was never complied with. Though, repeatedly, this Court adjourned the matter on the requests made by the learned counsel for the petitioner enabling the petitioner to deposit he balance amount, but in vain.
6. Today, during the proceedings of the case, learned counsel for the petitioner states that petitioner is not coming forward to impart the instructions and as such, this Court may proceed to decide the case on its own merits.
7. Having heard learned counsel for the parties and perused material available on record, this Court is not persuaded to agree with learned counsel for the petitioner that courts below have failed to appreciate the evidence in its right perspective, rather this court finds that both the courts below have dealt with each and every aspects of the matter very meticulously and there is no scope left for this Court to interfere.
8. In the case at hand, there is no denial, if any, by the petitioner accused with regard to his having availed the facility of loan and issuance of cheque as well as his signature thereupon, rather an attempt has been made by the accused to carve out a case that since he had cleared the entire liability, there was no occasion for him to issue the cheque in question. Apart from above, there is no denial, if any, by the petitioner with regard to his having availed the facility of loan amounting to Rs.1.00 lac from the respondent-complainant-bank. Since there is no dispute, if any, with regard to issuance of che
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