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2023 Supreme(P&H) 1974
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
HARSH BUNGER, J.
Jaswant Singh – Petitioner
Versus
State of Punjab & Anr. – Respondents
CRR-740 of 2023 (O&M)
Decided On : 17-05-2023
Dr. Rau P.S. Girwar, Advocate; For the Petitioner
For the Respondent: Mr. Aditya Kapoor, A.A.G., Punjab.
Headnote:(A) Negotiable Instruments Act, 1881 - Section 138 - Revision petition against conviction and sentence for dishonoring a cheque - The petitioner was found guilty for issuing a cheque without sufficient funds to the complainant in discharge of a legally enforceable debt related to coal purchases - The defense that the petitioner had not purchased coal and that his license was expired was rejected by the courts - Presumption under Section 139 of the Act was in favor of the complainant as the petitioner did not prove his defenses satisfactorily. (Paras 7, 10, 12, 23)
(B) Criminal Procedure Code, 1973 - Section 401 - Limited scope of revisional jurisdiction - Interference is warranted only in cases of illegality or perversity in lower court proceedings. (Paras 16, 17)
Facts of the case:
The complaint arose from the petitioner's purchase of coal worth Rs.5,87,100/- on credit, with part payment made but a balance of Rs.4,80,100/- outstanding, leading to the issuance of a cheque that bounced due to insufficient funds.
Findings of Court:
Both lower courts confirmed the conviction based on the evidence presented, emphasizing the presumption of liability under the Negotiable Instruments Act and the inadequacy of the petitioner's defenses.
Issues: Central issues included whether the petitioner had a legally enforceable debt and whether the defenses raised were sufficient to rebut the presumption under the N.I. Act.
Ratio Decidendi: The courts upheld the conviction by determining that the petitioner failed to substantiate allegations of false implication and lack of transactions with the complainant, thus validating the presumption of the cheque’s validity in the context of the law.
Result: Revision petition dismissed.
| Table of Content |
|---|
| 1. liability under section 138 for dishonored cheque. (Para 2 , 5) |
| 2. arguments on the absence of coal purchase bills. (Para 9 , 12 , 13) |
| 3. burden of proof on the accused. (Para 14) |
| 4. court upholds presumption under section 139. (Para 15 , 18) |
| 5. judgment confirms conviction based on evidence. (Para 17 , 19) |
JUDGMENT
Mr. Harsh Bunger, J. (Oral)
The present revision petition has been filed under Section 401 of the Code of Criminal Procedure (for short 'the Cr.P.C.') for setting aside of the judgment of conviction under section 138 of the Negotiable Instruments Act (for short 'the N.I. Act') as well as the order of sentence dated 28.10.2021 passed by learned Judicial Magistrate Ist Class, Bathinda. A further prayer has been made for setting aside the judgment dated 03.01.2023 passed by learned Sessions Judge, Bathinda; whereby, the appeal filed by the petitioner against the aforesaid judgment of conviction and order of sentence dated 28.10.2021; was dismissed.
2. Briefly, respondent No.2-complainant filed a complaint under section 138 of the N.I. Act read with section 142 of the N.I. Act and 420 of the IPC, by alleging that the petitioner herein had been purchasing coal from respondent No.2-complainant on credit/cash basis from time to time and had been making the payments from time to time. It was averred that in the month of May/June, 2015, the present petitioner purchased coal for his brick kiln on credit basis for Rs.5,87,100/- and he made a partial payment to the tune of Rs.1,07,000/- during this period and an amount of Rs.4,80,100/- was outstanding against the petitioner and in discharge of his lawful existing liability, he issued a cheque bearing No.005170 dated 03.08.2016 for a sum of Rs.4,80,000/- in favour of respondent No.2-complainant from his account maintained with 'Axis Bank Limited', Chandigarh Branch with the assurance that the same would be honoured upon its presentation. However, when the said cheque was presented for encashment, the same was dishonoured vide Memo dated 12.10.2016 with the remarks "funds insufficient". Thereafter, respondent No.2-complainant got issued a legal notice dated 09.11.2016 upon the petitioner herein and upon failure to make the payment within the stipulated period, the afore-said complaint was filed.
3. In the preliminary evidence, respondent No.2-complainant (Om Parkash) appeared as CW-1 and tendered documents Exhibits C-1 to C-4 and after considering the same, the petitioner was summoned and subsequently, notice of accusation was served upon him vide order dated 25.03.2019, to which, he pleaded not guilty and claimed trial.
4. After service of notice of accusation upon the petitioner, respondent No.2-complainant appeared as CW-1 and was cross-examined. He further tendered attested copies of ledger entries Ex. C-5 and Ex. C-6 and closed his evidence.
5. After closure of evidence of respondent No.2-complainant, the statement of the petitioner was recorded under Section 313 of the Cr.P.C.; wherein, he pleaded innocence and claimed false implication. The petitioner submitted that he did not purchase any coal from respondent No.2-complainant/firm because his license No.824 had been expired on 24.01.2015 and then he stopped his brick-kiln and after that, no transaction was held between respondent No.2/complainant and the petitioner. A further stand was taken that one Rajesh Kumar was partner of Dharam Singh, who is the son of the petitioner and it was Rajesh Kumar, who had taken the cheque in question from the Office of his son Dharam Singh and handed over the same to respondent No.2-complainant; whereupon, the afore-said complaint was filed by respondent No.2-complainant in connivance with Rajesh Kumar, in order to grab the amount from petitioner-Jaswant Singh.
6. In defence evidence, the petitioner examined one Rajat Jindal, Inspector Food and Supply, Bathinda, as DW-1 and closed his evidence.
7. The learned trial Court after appreciating the evidence available on the re
