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PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
Deepak Gupta, J.
Gian Chand Garg – Appellant
Versus
Harpal Singh And Another – Respondent
CRR-2563-2010 (O&M)
Decided on : 27-03-2025
JUDGMENT :
Deepak Gupta, J.
In criminal complaint filed by Harpal Singh (respondent herein), accused-Gian Chand Garg (petitioner herein) was convicted by ld. JMIC, Kurukshetra under Section 138 of the Negotiable Instruments Act, 1881 [for short 'the NI Act'] vide judgment dated 21.04.2010 and was sentenced to undergo simple imprisonment for a period of 6 months and to pay fine of Rs. 1000/- with default sentence of 15 days imprisonment vide order of the even date. Fine was paid.
2. Against this conviction and sentence, appeal was preferred by the accused (petitioner herein), but the same was dismissed by the ld. Additional Sessions Judge, Kurukshetra vide order dated 14.09.2010, thus affirming the conviction as well as sentence.
3. Against the aforesaid judgment of conviction and order of sentence passed by the trial Court and as affirmed by the appellate Court, the present revision has been filed by the accused.
4. As the paper-book would reveal, the case of the complainant i.e. respondent herein was that an amount of Rs. 5 lakh had been borrowed by the accused-petitioner herein and in order to pay the same, accused had issued cheque No.933572 dated 15.10.2003 drawn on Punjab National Bank, Ratgal, Tehsil Thanesar, District Kurukshetra to discharge the liability. However, on presentation, the cheque was dishonoured by Banker of the accused on 31.12.2003 with endorsement of 'insufficient funds'. Complainant approached the accused and requested him to make payment of the cheque amount, but he postponed the matter and then complainant issued a legal notice dated 19.01.2004 under Registered AD cover but the accused did not receive the same and it was returned to the complainant. With these allegations, complaint was filed.
5. After recording preliminary evidence, accused was summoned. On his appearance, notice of accusation under Section 138 of the NI Act was served upon him, to which he pleaded not guilty and claimed trial. Complainant produced evidence in support of his case. Accused in his statement under Section 313 CrPC alleged false implication. After hearing both the sides, ld. Magistrate found the accused to be guilty and convicted him under Section 138 of the NI Act and sentenced him thereunder as per the details given earlier and the same has been affirmed by the appellate Court.
6.1 Assailing the aforesaid findings, ld. counsel contends that legal notice prior to filing of the complaint was not served upon the accused-petitioner, inasmuch as it was reported by the postal employee that addressee was on leave and so, the notice was returned unclaimed. It is contended that since the legal notice was not served upon the accused, therefore, the complaint was premature.
6.2 Another contention made by ld. counsel is that the return memo issued by the bank does not bear the stamp of the bank and as such, it cannot be relied.
6.3 It is also the contention that loan as allegedly advanced by the complainant, was neither entered by the complainant in his account books nor was shown in his Income Tax Returns and so, the case pleaded by the complainant was not reliable.
6.4 With these submissions, ld. counsel prays for setting aside the conviction as well as order of sentence.
7.1 Refuting the aforesaid contentions, ld. counsel for the respondent contends that the entire evidence as examined by the trial Court was re-appreciated by the Appellate Court and no illegality or perversity was found in the findings. It is contended that even if the legal notice sent to the accused prior to filing of the complaint could not be served upon him as he was on leave, the filing of the complaint itself amounts to serving of the notice and that accused could have made the payment within 15 days after being served of the complainant. Ld. counsel has relied upon C.C. Alavi Haji Vs. Palapetty Muhammed and another, 2007(3) RCR (Criminal) 185.
7.2 It is further the contention of ld. counsel that the bankers return memo bears the date as well as signature of the is
The presumption of liability under Section 139 of the Negotiable Instruments Act is robust, shifting the burden to the accused to prove otherwise, which was not achieved in this case.
The main legal point established in the judgment is the presumption in favor of the holder under Section 139 of the NI Act, the rebuttable presumption of consideration under Section 118(a), and the r....
The main legal point established in the judgment is the presumption in favor of the holder under Section 139 of the Negotiable Instruments Act and the onus on the accused to raise a probable defense ....
The presumption of liability in dishonor of cheques under Section 139 of the NI Act is rebuttable, requiring the accused to provide credible evidence to challenge the presumption of a legally enforce....
The presumptions under sections 138 and 139 of the NI Act favor the holder, shifting the burden to the accused to rebut the claims of liability.
The accused's failure to rebut the presumption under Section 139 of the NI Act and the service of notice of dishonour within the prescribed period led to the Court upholding the conviction and the co....
The presumption of liability under Section 139 of the Negotiable Instruments Act applies despite account seizure; the burden to disprove liability lies with the accused.
The presumption of issuance under Section 139 of the Negotiable Instruments Act requires the accused to prove the contrary if the cheque's signature is admitted, which was not done in this case.
Point of Law : Jurisdiction is one of supervisory jurisdiction exercised by High Court for correcting miscarriage of justice.
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