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2017 Supreme(P&H) 1519
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ARVIND SINGH SANGWAN, J.
Vikas Chander - Appellant
Versus
Rajesh Kaushik - Respondent
CRM-A No.203-MA of 2013 (O&M)
Decided On : 10-11-2017
Advocate Appeared:
For the Appellant :Mr. Anurag Jain, Advocate with Ms. Gupreet Kaur, Advocate
For the Respondent:Mr. Rose Gupta, Advocate
IMPORTANT POINT
Dishonour of Cheque – Complainant failed to give specific date about advancement of loan – It cannot be a sole ground to dismiss the complaint.
Headnote:(A) Negotiable Instruments Act, 1881, S.138 & S.139 – Dishonour of Cheque – Presumption of Debt – Though, in the complaint and the affidavit, the complainant has failed to give specific date about advancement of loan, it cannot be a sole ground to dismiss the complaint when the accused has admitted issuance of cheque and his signatures on the same – Once the issuance of a cheque as well as the signatures on the same are accepted by the accused, the presumption under Section 139 of the Act would operate.
(B) Negotiable Instruments Act, 1881, S.138 & S.139 – Dishonour of Cheque – Photocopies of Documents – Income tax return filed by complainant held inadmissible by trial court being photocopies-Held; Documents pertain to complainant himself and came from custody of complainant shown relevant entry of advancement of loan by mentioning name of accused – Accused has cross examined complaint regarding income tax returns, though, the same were photocopies – Therefore, trial Court totally ignored the statement of accused u/s 313 Cr.P.C.where these income-tax returns were put to him and he has simply stated that these are fake documents – Trial Court wrongly acquitted accused – Acquittal set aside – Appeal allowed.
ARVIND SINGH SANGWAN, J.
1. Leave to appeal granted.
2. Registry is directed to number the same as criminal appeal.
3. Challenge in the present appeal is to the judgment dated 28.02.2013 passed by the trial Court vide which the respondent/accused namely Rajesh Kaushik was acquitted of the charges framed against him under Section 138 of the Negotiable Instruments Act (in short 'the Act') in criminal complaint No.1470-II of 2010.
4. Brief facts of the case are that the appellant has filed a complaint under the Act with the allegation that the respondent had obtained a loan of Rs.2,50,000/- from the complainant and had issued a cheque bearing No.501718 dated 16.08.2009 drawn on Union Bank of India, Hisar. The complainant/appellant has presented the cheque with his bank and the same was returned on 22.01.2010 with the remarks insufficient funds. Later on, the appellant had issued a legal notice dated 30.01.2010 and after affording 15 days time, when the accused failed to reply, the present complaint was filed.
5. The respondent/accused – Rajesh Kaushik was summoned. Thereafter, in view of the judgment of the Hon'ble Supreme Court in “Nitinbhai Sevatilal Shah and another vs Manubhai Manjibhai Panchal”, 2011(4) RCR (Criminal) 148, a de novo trial was conducted and notice of accusation was served upon the respondent afresh on 21.01.2012 to which he did not plead guilty and claim trial.
6. The complainant/appellant appeared himself as PW1 and tendered his affidavit dated 15.03.2012 as Ex.PW1/A reiterating the facts of the case. The complainant also tendered the original cheque as Ex.P1, bank return memorandum dated 22.01.2010 as Ex.P2, legal notice dated 27.01.2010 as Ex.P3, postal receipts dated 30.01.2010 as Ex.P4, cover-note as Ex.P5 and income-tax returns as Exs.P6 and P7.
7. The respondent/accused in his statement under Section 313 Cr.P.C. denied the incriminating evidence which has come on record and also denied that he has obtained a loan of Rs.2,50,000/-. It was also denied that he has issued a cheque of Rs.2,50,000/- to the complainant to discharge the outstanding liability.
8. The trial Court vide its impugned judgment dated 28.02.2013 acquitted the respondent/accused. The operative part of the judgment is reproduced as under:-
“16. After shifting the evidence, it is observed that the complainant/holder of the cheque Sh. Vikas (CW1) failed to place on record any document in proof of alleged advance of loan of sum of Rs.2,50,000/- (Rs. Two Lacs and Fifty Thousand only) to the accused Sh. Rajesh. He also omitted to furnish his Account-Books and the Income Tax Returns of the relevant year despite availability, to prove his complaint by establishing his financial capacity and monetary transactions, etc. from time to time. His complaint, as well as his affidavit were silent about the date, months or year of the alleged advance of loan to the accused – Sh. Rajesh (Drawer of the cheque). Whereas, it is a settled law in Krishna Janardhan Bhat vs Dattatraya G. Hegde 2008(1) RCR (Criminal) 698(SC) that it was the boundn duty of the complainant to prove that he had that much money to advance.
17. It has also been settled by the Hon'ble Supreme Court of India in the aforesaid petition that ordinarily, in terms of Section 269 SS of the Indian Tax Act, any advance taken by way of any loan of more than Rs.20,000/- was to be made by way of an account payee cheque only.
18. It has also been held in M/s Fanesh Flour Mills vs Jeewan Kumar and another 2004(2) RCR (Criminal) 797 (P&H) that it was incumbent upon the complainant to produce documentary or oral evidence to establish that the cheque was in fact issued to him to discharge a debt or liability-Accused denying liability- Complainant failed to show in which connection accused issued the cheque i.e. whether the cheque was against the supply of goods, loan, etc. Accused rightly acquitted.
19. In the present case also, not even an iota of evidence has been adduced by the complainant/holder to
