Back
2016 Supreme(P&H) 902
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
HARI PAL VERMA, J.
Amarjit Singh - Petitioner
Versus
Kuljinder Singh - Respondent
Criminal Revision No. 2036 of 2016 (O&M)
Decided On : 13-07-2016
Advocate Appeared:
For the Petitioner: Mr. K.S. Kahlon
Headnote:
Negotiable Instruments Act - Dishonour of Cheque - Section 138 - 138, 139 - The court discussed the provisions of Section 138 and 139 of the Negotiable Instruments Act, 1881, which raise a presumption in favor of the holder of the cheque that it has been issued for the discharge of any debt or liability. The court emphasized that the existence of a legally recoverable debt is not a matter of presumption under Section 139 and that the accused failed to rebut the statutory presumption under Section 139. The court also considered the petitioner's plea regarding his medical condition, but found it inadmissible as it was never raised before the lower courts.
Fact of the Case:
The petitioner was convicted for dishonoring a cheque issued to the respondent under Section 138 of the Negotiable Instruments Act, 1881. The petitioner claimed trial and appealed against the judgment of conviction and sentence, but the appeal was dismissed.
Finding of the Court:
The court found the petitioner guilty of committing an offence under Section 138 of the Negotiable Instruments Act, 1881, and upheld the judgment of conviction and sentence passed by the trial court.
Issues: The issues for determination included whether the accused had issued a cheque for a specific amount in favor of the complainant and whether the cheque was dishonored despite the issuance of a legal notice.
Ratio Decidendi: The court emphasized that the provisions of Section 138 and 139 of the Negotiable Instruments Act, 1881, raise a presumption in favor of the holder of the cheque that it has been issued for the discharge of any debt or liability. The court also held that the petitioner's plea regarding his medical condition was inadmissible as it was never raised before the lower courts.
Final Decision: The revision petition filed by the petitioner was dismissed by the court.
Hari Pal Verma, J.
Petitioner has filed the present revision petition challenging the judgment dated 16.5.2016 passed by learned Additional Sessions Judge, Jalandhar, whereby his appeal against judgment of conviction and sentence dated 7.8.2014 passed by Sub Divisional Judicial Magistrate, Phillaur was dismissed. Vide judgment dated 7.8.2014, learned Magistrate has held the petitioner guilty for committing an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”) and has sentenced him to undergo rigorous imprisonment for a period of one year and to pay costs of Rs.2,000/-.
Briefly stated, respondent-Kuljinder Singh filed a complaint against the petitioner under Section 138 of the Act and Section 420 IPC, with the allegations that the petitioner has borrowed a sum of Rs.2,30,000/- from the respondent-complainant in the month of March, 2012 for his personal need. The petitioner had agreed to pay back the said amount within one month and in order to discharge his legal liability, he had issued a postdated cheque, in favour of the respondent i.e. cheque No.722279 dated 17.4.2012 drawn on ICICI Bank Branch, Phagwara. The petitioner assured the respondent that in case the cheque is presented in the bank, the same shall be encashed. Respondent presented the said cheque in bank for encashment, but the same was returned back with the remarks “Account Closed” vide memo dated 19.4.2012. As required under Section 138 of the Act, the respondent issued a Legal Notice dated 14.5.2012 to the petitioner to make the payment of the cheque amount. However, the petitioner did not make the payment of the cheque amount in question, giving a cause of action to the respondent-complainant to file the present complaint.
Petitioner was summoned under Section 138 of the Act and notice of accusations for commission of offence under Section 138 was also served upon him. The petitioner did not plead guilty and rather, claimed trial.
The respondent himself stepped into the witness box as CW-1 and reiterated the averments made in the complaint in his affidavit Ex.CA and proved the statement of account as Ex.C1, original cheque dated 17.4.2012 as Ex.C2, memo dated 19.4.2012 as Ex.C3, legal notice dated 14.5.2012 as Ex.C4 and postal receipt as Ex.C5 and closed his evidence.
The statement of the petitioner under Section 313 CrPC was recorded and all the incriminating evidence appearing against him was put to him, to which, he pleaded false implication and claimed his innocence. Learned trial Court had framed the following issues for determination:-
“1. Whether accused has issued a cheque for a sum of Rs.2,30,000/- dated 17.04.2012 drawn on ICICI Bank Branch Phagwara in favour of the complainant in discharge of his legal liability or not?
2. Whether said cheque on presentation returned back dishonoured with the remarks “Account closed” and despite the issuance of legal notice accused failed to make the payment of the cheque amount within statutory period or not?”
The petitioner referred to the cross-examination of CW-1 Kuljinder Singh (complainant) who had stated that at the time of handing over the cheque, Santokh Singh and Amarjit Singh were present, but the complainant had not examined these witnesses so as to corroborate the allegations made in the complaint. It was pointed out that the fact as to when the loan in question was taken by the petitioner has not been mentioned in the complaint.
Having heard learned counsel for the parties and considering the contentions raised on their behalf, learned trial Court vide judgment dated 7.8.2012 held the petitioner guilty for commission of offence under Section 138 of the Act and sentenced him, as mentioned in the opening para of the judgment.
Aggrieved from the aforesaid judgment of conviction and sentence passed by the trial Court, the petitioner filed an appeal before learned Additional Sessions Judge, Jalandhar. However, the said appeal was dismissed with the following observation
