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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J.
Banshi Ram - Petitioner
Vs.
H.P. Co-operative Bank Ltd. - Respondent
Cr. Revision No. 118 of 2019
Decided On : 12-01-2024
Negotiable Instruments Act - Discharge of Debt - 138 - 139 - 118 - 146 - 27 - 138(b) - 138(c) - 138 - 139 - 118 - 146 - 27 - 138(b) - 138(c) - Summary: The accused issued a cheque in discharge of a debt, which was dishonored due to insufficient funds. The accused failed to rebut the presumption under Section 139 of the NI Act. The notice of dishonour was served within the prescribed period. The accused failed to prove the absence of a legally enforceable debt or liability. The Court upheld the conviction and the compensation awarded.
Fact of the Case:
The accused issued a cheque in discharge of a debt, which was dishonored due to insufficient funds. The accused failed to rebut the presumption under Section 139 of the NI Act. The notice of dishonour was served within the prescribed period. The accused failed to prove the absence of a legally enforceable debt or liability.
Finding of the Court:
The Court upheld the conviction and the compensation awarded.
Issues: The accused's failure to rebut the presumption under Section 139 of the NI Act and the service of notice of dishonour within the prescribed period.
Ratio Decidendi: The accused's failure to rebut the presumption under Section 139 of the NI Act and the service of notice of dishonour within the prescribed period led to the Court upholding the conviction and the compensation awarded.
Final Decision: The Court upheld the conviction and the compensation awarded.
JUDGMENT :
Rakesh Kainthla, J.
The present revision is directed against the judgment dated 16.1.2019, passed by learned Additional Sessions Judge,-II, Mandi, H.P., vide which the appeal filed by the petitioner (accused before the learned Trial Court) was dismissed. (The parties shall be hereinafter 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 petition are that the complainant filed a complaint before the learned Trial Court under Section 138 of the Negotiable Instruments Act. It was asserted that the complainant is a Cooperative Bank registered under the Cooperative Societies Act. It is engaged in the banking business. The complainant through his Branch Manager, Smela advanced personal loan to the accused on mutually agreed terms and conditions. The loan was to be repaid in monthly instalments. The accused failed to pay the money. An amount of Rs.2,46,000/- became due in March 2014. The accused issued a cheque No. 41,89,451/-, dated 5. 3.2014 (Ex.CW-1/B) in the discharge of his legal liability for a sum of Rs.2,46,000/- as full and final payment of his liability. The complainant presented the cheque for realization on the next day but it was returned unpaid with the remarks ‘insufficient amount’. The complainant issued a legal notice dated 15.4.2014 (Ex.CW-1/F) which was duly served upon the accused but the accused failed to pay the amount within the stipulated period. Hence, the complainant was filed for taking action against the accused.
3. The learned Trial Court found sufficient reason 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. He pleaded not guilty and claimed to be tried.
4. The complainant examined Suresh Kumar Verma (CW-1) to prove its case.
5. The accused in his statement recorded under Section 313 of Cr.P.C. denied the case of the complainant in its entirety. He stated that the Manager of the complainant bank was duping local people and showing loan amounts due not only from the accused but also from other persons. No defence was sought to be adduced by the accused.
6. The learned Trial Court held that there is a presumption attached to the cheque that it was issued in the discharge of the debt and other liability. There is nothing in the examination of Suresh Kumar Verma (CW-1) to doubt his testimony. The accused failed to step into the witness box to probabilize his defence. The notice mentioned District Mandi but it was struck off and substituted by Bilaspur. The evidence of the accused was insufficient to rebut the presumption. Hence, the accused was convicted and sentenced to undergo simple imprisonment for one year and to pay compensation of Rs.3,30,000/- to the claimant.
7. Being aggrieved from the judgment passed by the learned Trial Court, the accused filed an appeal, which was decided by the learned Additional Sessions Judge, (First Appellate Court). Learned First Appellate Court held that the accused did not dispute the issuance of the cheque and taking of the loan. There is a presumption that the cheque was issued in the discharge of the legal liability. The accused failed to rebut this presumption. The cheque was dishonoured due to insufficient funds. The notice was duly served upon the accused but he failed to repay the amount despite receipt of the notice. The plea that the notice mentioned 30 days and it was bad was not accepted. Consequently, the appeal was dismissed.
8. Being aggrieved from the judgment and order passed by learned Courts below, the accused filed the present revision asserting that the judgments and order are against the law and facts based on conjectures and surmises. It was mentioned in the notice (Ex.CW-1/E) that the accused is a resident of Mandi whereas he is a resident of District Bilaspur. The presumption is rebuttable and there was sufficient material to
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