Amar Dev Verma vs Veer Daily Needs - 2023 Supreme(HP) 565

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(HP) 565

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Rakesh Kainthla, J.
Amar Dev Verma - Appellant
Versus
M/s Veer Daily Needs & anr. - Respondents
Cr. Appeal No. 339 of 2014
Decided On : 29-12-2023

Advocates:
Advocate Appeared:
For the Appellant :Mr. Peeyush Verma, Advocate.
For the Respondent:Mr. Ravinder Singh Jaswal, Advocate.

Headnote:
NI Act - Complaint under Section 138 - Summary of Acts and Sections: The court discussed the presumption of consideration under Section 139 of the Negotiable Instruments Act and the burden of proof on the accused to rebut this presumption. The court also considered the admissibility of the report of the Handwriting Expert under Section 294 of Cr.P.C. and the requirement to prove the opinion of a Handwriting Expert in accordance with the law. The court emphasized the need for the accused to raise a probable defence to rebut the presumption under Section 139 and the standard of proof required to discharge this evidential burden. The court also highlighted the limitations on the power to receive additional evidence at the appellate stage. The judgment referred to various legal principles established by the Hon'ble Supreme Court in similar cases to guide the decision-making process.
Fact of the Case:

The complainant filed a complaint under Section 138 of the NI Act against the accused for dishonour of a cheque. The accused claimed that the cheque was tampered with and issued for a lesser amount. The complainant sought to prove his financial capacity to lend the amount and filed an application under Section 311 of Cr.P.C. to recall himself for further examination.
Finding of the Court:

The court found that the report of the Handwriting Expert was not admissible without proper proof and that the complainant failed to prove his financial capacity to lend the amount. The court dismissed the application to recall the complainant for further examination and held that the presumption under Section 139 of the NI Act was rebutted by the accused's probable defence.
Issues: The issues included the admissibility of the report of the Handwriting Expert, the requirement to prove the opinion of a Handwriting Expert in accordance with the law, and the complainant's failure to prove his financial capacity to lend the amount.
Ratio Decidendi: The court emphasized the need for the accused to raise a probable defence to rebut the presumption under Section 139 of the NI Act and the limitations on the power to receive additional evidence at the appellate stage. The court also highlighted the standard of proof required to discharge the evidential burden and referred to various legal principles established by the Hon'ble Supreme Court in similar cases to guide the decision-making process.
Final Decision: The court dismissed the appeal and upheld the judgment of the learned Trial Court, finding that the complainant failed to prove his financial capacity to lend the amount and that the presumption under Section 139 of the NI Act was rebutted by the accused's probable defence.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment dated 14.07.2014 passed by learned Additional Chief Judicial Magistrate-II, Shimla, vide which the complaint filed by the appellant (complainant before learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).

2. Briefly stated, the facts giving rise to the present appeal are that the complainant filed a complaint before the learned Trial Court for the commission of an offence punishable under Section 138 of the NI Act. It was asserted that the complainant is a resident of Shanti Bhawan, post office building Tutu, where he is doing his work. The complainant is on friendly terms with the accused for 7-8 years. The accused no. 1 is a sole proprietorship firm in the name & style of M/s Veer Daily Needs and Karyana Store and accused no. 2 is the proprietor of the firm. The accused no. 2 approached the complainant in March 2009 for a loan of Rs.3,10,000/-. The complainant agreed and advanced an amount of Rs.3,10,000/- in March 2009 after arranging it from his relatives and friends. Accused No.2 undertook to repay the amount by the end of October 2009. Accused no.2 issued a post-dated cheque of Rs.3,10,000/- in favour of the complainant drawn on State Bank of India, Boileauganj in the discharge of his legal liability. The complainant presented the cheque before Punjab National Bank, Totu, Shimla, who sent it to the State Bank of India for realization; however, the cheque was dishonoured with the endorsement ‘account closed’. The complainant served a notice upon the accused by means of a registered A.D. cover and certificate of posting. The notice was duly served upon the accused. The accused failed to make the payment despite the receipt of the notice; hence, the complaint was filed to take action against the accused.

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of an offence punishable under Section 138 of the NI Act. The accused pleaded not guilty and claimed to be tried.

4. The complainant examined himself (CW1), Netar Singh (CW2), Prithvi Pal Singh (CW3), and Alkesh Sain (CW4).

5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that the complainant was known to him. He admitted that he is the proprietor of Veer Daily Needs. He admitted that the cheque was dishonoured due to insufficient funds. He admitted that he had received the notice and stated that he had replied to the notice. He stated that he had handed over a cheque of Rs.10,000/-. The amount was changed. The cheque was without any date. The accused examined Thakur Singh Verma (DW1) and Prem Pal (DW2) in defence.

6. The cheque was also sent for comparison and the report of the handwriting expert was received.

7. Learned Trial Court held that the cheque carries a presumption of consideration under Section 139 of the Negotiable Instruments Act and the burden lies upon the accused to rebut this presumption. The accused has taken a defence that a cheque was issued for Rs.10,000/- and was tampered with. This was corroborated by the report of the handwriting expert in which it was mentioned that figure ‘3’ was added subsequently. The complainant claimed that his annual income is Rs.2,50,000/- and he is an income tax payee. He admitted that he had filed the Income Tax Return of Rs.1,70,000/-There was no documentary evidence to prove that the complainant had the financial capacity to lend Rs.3,10,000/-. It was also not probable that a person would lend money by borrowing it from his friends; therefore, the complaint was dismissed.

8. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court erred in dismissing the complaint. The accused has raised a vague defence. He had failed to