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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Vinod S. Bhardwaj, J.
Rameshwar – Appellant
Versus
Gian Chand – Respondent
CRA-AS-25-2022
Decided On : 21-04-2022
CRIMINAL - Negotiable Instruments Act, 1881 - Section 118, 139 - Presumption of liability - Rebuttal of presumption - Standard of proof - Appeal against acquittal - Scope and ambit of Section 378 Cr.P.C. - Interference by the High Court.
Fact of the Case:
The appellant-complainant, who is a permanent resident of Ambala City, claims to have friendly relationship with the respondent-accused, who is a partner in M/s Shiv Shakti Trading Company. The respondent-accused insisted the appellant-complainant to purchase his house measuring 282 Sq. Yards, which is part of khasra no.11/15 situated at Village Soundha, Tehsil and District Ambala for a total sale consideration of Rs.14,00,000/-. The appellant-complainant agreed to purchase the said house and an agreement to sell dated 21.03.2011 was thereafter executed between both the parties. The respondent-accused received an amount of Rs.12,00,000/- as earnest money and agreed to receive the balance sale consideration of Rs.2,00,000/- at the time of execution and registration of sale deed, which was fixed for 31.12.2011. Though the respondent-accused could not get the sale deed executed and registered in favour of the appellant-complainant on the due date and demanded an amount of Rs.10,00,000/- as a friendly loan from the appellant-complainant. Owing to the good relations, the appellant-complainant further advanced a sum of Rs.10,00,000/- as loan to the respondent-accused in the first week of May, 2011, on the assurance by the respondent-accused that the said amount shall be returned shortly. That in discharge of the said liability towards the loan amount of Rs.10,00,000/-, the respondent-accused issued a cheque bearing No.294522 dated 09.02.2012 for a sum of Rs.10,00,000/- drawn on Oriental Bank of Commerce, Arya Chowk, Ambala City in favour of the appellant-complainant with an assurance that the said cheque shall be honoured upon its presentation. That, however, on presentation of the said cheque in the account by the appellant-complainant, the same was dishonoured by the banker of the appellant-complainant with remarks 'exceeds arrangements' vide memo dated 11.02.2012. A legal notice dated 17.02.2012 was, thereafter, served upon the respondent-accused, but no payment was made despite receipt of the said legal notice resulting in the institution of the complaint.
Finding of the Court:
The Trial Court came to the conclusion that the appellant-complainant could not establish the existence of a legally enforceable debt and that the cheque in question was issued in discharge thereof, and that the allegation as regards the friendly loan, transaction was not established. Hence, the respondent-accused was acquitted of the allegations levelled against him.
Issues: Whether the presumption under Section 139 of the Negotiable Instruments Act is absolute and cannot be rebutted?
Ratio Decidendi: The presumption enshrined under Section 139 of the Negotiable Instruments Act is not absolute and is rather a rebuttable presumption. The accused would be discharged of the presumption, the moment an accused raises reasonable suspicion with respect to the due execution of the cheque. It is not incumbent upon an accused to lead evidence and even subjecting the complainant to cross-examination on such aspects can be taken as sufficient grounds to shift the burden upon the complainant to establish that the debt in question was duly advanced to the drawer of the cheque. Once such suspicion is created by an accused, the burden of proof would thereafter shift upon the complainant to prove that the cheque had been executed in discharge of a pre-existing liability/legally enforceable debt. Existence of legally enforceable debt is a pre-requisite for issuance of a cheque.
Final Decision: The instant appeal, thus, lacks merit and is accordingly dismissed and the judgment dated 28.11.2014 (supra) is upheld.
JUDGMENT
Vinod S. Bhardwaj, J. - The instant appeal has been filed against the judgment dated 28.11.2014, passed by the Judicial Magistrate Ist Class, Ambala, whereby the Magistrate has dismissed the Criminal Complaint bearing No.228 dated 28.03.2012, titled as 'Rameshwar Vs. Gian Chand' and acquitted the respondent of the notice of accusation served upon him.
2. Before adverting to the merit of the instant case, certain facts as are necessary to be referred to for appreciation of the appeal are being extracted as under:-
2.1 The appellant-complainant, who is permanent resident of Ambala City, claims to have friendly relationship with the respondent-accused, who is partner in M/s Shiv Shakti Trading Company. The respondent-accused insisted the appellant-complainant to purchase his house measuring 282 Sq. Yards, which is part of khasra no.11/15 situated at Village Soundha, Tehsil and District Ambala for a total sale consideration of Rs.14,00,000/-.
2.2 The appellant-complainant agreed to purchase the said house and an agreement to sell dated 21.03.2011 was thereafter executed between both the parties. The respondent-accused received an amount of Rs.12,00,000/- as earnest money and agreed to receive the balance sale consideration of Rs.2,00,000/- at the time of execution and registration of sale deed, which was fixed for 31.12.2011.
2.3 Though the respondent-accused could not get the sale deed executed and registered in favour of the appellant-complainant on the due date and demanded an amount of Rs.10,00,000/- as a friendly loan from the appellant-complainant. Owing to the good relations, the appellant-complainant further advanced a sum of Rs.10,00,000/- as loan to the respondent-accused in the first week of May, 2011, on the assurance by the respondent-accused that the said amount shall be returned shortly.
2.4 That in discharge of the said liability towards the loan amount of Rs.10,00,000/-, the respondent-accused issued a cheque bearing No.294522 dated 09.02.2012 for a sum of Rs.10,00,000/- drawn on Oriental Bank of Commerce, Arya Chowk, Ambala City in favour of the appellant-complainant with an assurance that the said cheque shall be honoured upon its presentation.
2.5 That, however, on presentation of the said cheque in the account by the appellant-complainant, the same was dishonoured by the banker of the appellant-complainant with remarks 'exceeds arrangements' vide memo dated 11.02.2012. A legal notice dated 17.02.2012 was, thereafter, served upon the respondent-accused, but no payment was made despite receipt of the said legal notice resulting in the institution of the complaint.
2.6 That the appellant-complainant himself stepped into the witness box as CW-1 and tendered the following documents in his evidence:
Sr.
No.
Exhibits
Documents
1.
Ex.C1
Cheque in question.
2.
Ex.C2
Bank memo.
3.
Ex.C3
Legal Notice.
4.
Ex.C4
Postal Receipt.
5.
Ex.C5
Acknowledgement.
6.
Ex.C6
Agreement.
2.7 The appellant-complainant, while closing his evidence on 05.05.2014, tendered following documents also:
Sr.
No.
Exhibits
Documents
1.
Ex.C7
Legal notice dated 17.02.2011
2.
Ex.C8
Postal Receipt.
3.
Ex.C9
Postal Acknowledgement.
4.
Ex.C10
Copy of application to Tehsildar.
5.
Ex.C11
Copy of affidavit as to attendance.
6.
Ex.C12
Copy of passbook.
2.8 That all the incriminating material was put to the respondent- accused in his statement under Section 313 of the Cr.P.C., wherein he denied all the allegations levelled against him and claimed that he is innocent, and that the cheque in question was never issued in discharge of any legally enforceable debt or liability, rather it was given as a security against the earnest money taken at the time of agreement to sell, since the registration of sale deed in Village Soundha were banned. In order to earn further profit by way of selling the property in question, the security cheque has been misused. No amount of Rs.10,00,000/- was received as friendly loan, and even the legal notice was never received by him. However, no evidence in defence was led by t
The presumption under Section 139 of the Negotiable Instruments Act is rebuttable and the accused can discharge the burden of proof by raising a probable defense.
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