The main legal point established is the enforceability of a security cheque and the burden on the accused to rebut the statutory presumption in favor of the complainant under Section 138 and 142 of the Negotiable Instruments Act, 1881.

JUDGMENT

Jasgurpreet Singh Puri, J. (Oral) -

CRM-35355-2022

1. For the reasons recorded in the application, the delay of 198 days in filing the present appeal is hereby condoned.

Application stands allowed.

Main case

2. The present is a revision petition filed by challenging the orders passed by the learned Judicial Magistrate Ist Class, Karnal dated 15/23.01.2019 whereby the petitioner in the present case has been convicted under Section 138 of the Negotiable Instruments Act, 1881 and has been directed to undergo simple imprisonment for 7 months and further to pay compensation equivalent to cheque amount for commission of offence under Section 138 of the Negotiable Instruments Act, 1881.

3. The challenge has also been made to the judgment of the learned Additional Sessions Judge, Karnal dated 17.02.2022, whereby the appeal filed by the petitioner has also been dismissed but with a modification that out of the total cheque amount Rs. 8,000/- which was 20% of the amount of compensation has already been deposited by the petitioner and, therefore, the petitioner was directed to pay an amount of Rs. 52,000/-instead of Rs. 60,000/-. The quantum of sentence of 7 months was upheld.

4. The facts of the present case are that respondent No.1 had filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 against the petitioner on the ground that the petitioner had purchased a buffalo for an amount of Rs. 60,000/- in the presence of one person namely Joginder. He did not pay the amount for the purchase of buffalo and instead had issued a cheque bearing No. 041954 dated 06.05.2017, amounting to Rs. 60,000/- in favour of the complainantrespondent No.1 drawn on Axis Bank. Thereafter, the complainantrespondent No.1 has presented the said cheque in the bank for the purpose of encashment but the same was dishonoured with the remarks 'Insufficient Funds'. Thereafter, a legal notice dated 17.07.2017 was served upon the petitioner in accordance with the provisions of the Negotiable Instruments Act, 1881 but the petitioner did not reply to the aforesaid legal notice and thereafter, the present complaint was filed before the learned Court. After leading preliminary evidence, the petitioner was summoned to face trial for commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The complainant-respondent No.1 examined himself as CW1 and tendered into evidence his own affidavit Ex. C1 wherein he had reiterated the averments made in the complaint and also tendered into evidence cheque as Ex. C2, memo as Ex. C3, legal notice as Ex. C4, registered AD as Ex. C5, acknowledgement as Ex. C6 and postal receipt as Ex. C7. Thereafter, the complainant closed his evidence on 29.11.2018. Thereafter, the statement of the petitioner-accused was recorded under Section 313 of the Code of Criminal Procedure to which he pleaded innocence and thereafter in his defence evidence, he examined DW1 namely Kuldeep Singh and thereafter closed his evidence.

5. Learned trial Court while considering the allegations made in the complaint came to the conclusion that the statutory presumption which has arisen in favour of respondent No.1-complainant although was rebuttable but has not been rebutted by the petitioner. The cheque was not in dispute and even the signatures on the cheque were also not in dispute.The only plea which was taken by the petitioner was that he had in fact not issued the cheque to respondent No.1-complainant but had issued the cheque to one another person namely Leela Ram as a security and the cheque has been misused by respondent No.1. The learned trial Court while considering the submissions made by the learned defence counsel observed that had it been so it has already come on record that the aforesaid Leela Ram is alive but the petitioner has failed to examine the aforesaid Leela Ram to prove his contention. Once the cheque itself has been admitted by the petitioner and the statutory presumpti