TMI Blog2021 (10) TMI 757X X X X Extracts X X X X X X X X Extracts X X X X ..... esale from his shop, as detailed hereinabove, which fact is otherwise evident from bill Ex. CW1/A, perusal whereof reveals that on 15.11.2016, accused herein purchased 120 bags of sugar and 100 kg. Chickpea from the shop of the complainant. Since complainant specifically pleaded in the complaint that he is proprietor of firm concerned i.e. M/s. Roshan Lal Sons, it cannot be said that he had no locus standi to file the complaint under Section 138 of the Act. Moreover, cheque in question has been not issued in favour of Anil Bansal, rather same was issued in favour of firm i.e. M/s. Roshan Lal Sons. This Court has a very limited jurisdiction under Section 397 of the Cr.P.C., to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below - this Court sees no valid reason to interfere with the well reasoned finding recorded by the courts below, which otherwise, appear to be based upon proper appreciation of evidence available on record and as such, same are upheld. Petition dismissed. - Criminal Revision No. 233 of 2019 - - - Dated:- 28-9-2021 - Sandeep Sharma , J. For the Appellant : P. P. Chauhan , Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s compelled to institute the complaint under Section 138 of the Act in the competent court of law. 3. Complainant with a view to prove its case examined himself as CW-1 and also tendered documents in evidence, whereas despite opportunity accused failed to lead any evidence. Accused in his statement recorded under Section 313 Cr.P.C. denied all the incriminating evidence led against him claiming himself to be innocent. 4. Learned trial Court on the basis of the evidence adduced on record by the respective parties, held accused guilty of having committed the offence punishable under Section 138 of the Act, and accordingly convicted and sentenced him as per the description given hereinabove. 5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial court, present petitioner-accused preferred an appeal in the Court of learned Additional Sessions, Sirmaur, District at Nahan H.P.(Camp at Paonta Sahib), but same was also dismissed vide judgment dated 9.4.2019, as a consequence of which, judgment of conviction and order of sentence recorded by learned trial Court came to be upheld. In the aforesaid background, pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eque as well as signature thereupon and as such, presumption under Sections 118 and 139 of the Act is available to the complainant that cheque in question was issued towards discharge of lawful liability. 8. Complainant while deposing as CW-1 stated that he is running a grocery business at Dhaula Kuan and accused was his customer. He deposed that on 15.11.2016 vide bill Ex. CW1/A accused purchased 120 bag of sugar and 100 kg. chickpea for sum of ₹ 3,35,500/-. He also deposed that on the same day accused issued cheque Ex. CW1/B, dated 16.11.2016 to him with a view to discharge his liability. He deposed that on 16.11.2016 he presented the cheque with the banker of the accused, but the same was dishonoured and same was returned to him vide memo Ex. CW1/C. This witness deposed that he issued legal notice Ex. CW1/B to the accused, postal receipt thereof Ex. CW1/E. This witness deposed that despite notice accused did not make the payment. In cross-examination, this witness admitted that bill does not bear the signature of accused Daya Ram. He also admitted that he did not write weight of sugar and chickpea in notice and complaint. He feigned his ignorance with regard to receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence. 19. In order to discharge his burden, the accused put forward the defence that in fact, he had had the monetary transaction with the said Shri Jagdishbhai and not with the complainant. In view of such a plea of the accused-appellant, the question for consideration is as to whether the accused-appellant has shown a reasonable probability of existence of any transaction with Shri Jagdishbhai? In this regard, significant it is to notice that apart from making certain suggestions in the cross-examination, the accused-appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp paper was given to Shri Jagdishbhai and another factor relied upon is that Shri Jagdishbhai had signed on the stamp paper in question and not the complainant. 19.1 We have examined the statement of Shri Jagdishbhai as also the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant and the accused. therefore I also the complainant both at the time of evidence the accused at what place, on what date at what time, the amount taken has not been able to make clearly. (sic) It is not true that the blank stamp paper duly signed were lying in which obstinate writing has been made therefore the same has not been registered through sub registrar. It is not true that the dealings have been made between me and accused therefore there is my signature and the signature of the accused and the complainant has not signed. It is not true that any types of dealings between the accused and the complainant having not been done in my presence therefore in my statement no clarification has been given. It is not true that the accused in my presence as mentioned in the complaint any cheque has not been given. It is not true that I in collusion with the complainant to usurp the false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that in support of the complaint of Shashimohan Goyanka is giving false statement. 19.4 The statement of Shri Jagdishbhai does not make out any case in favour of the accused-appellant. It is difficu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writing is not in the nature of any bi partite agreement to be signed by the parties thereto. It had been a writing in the nature of acknowledgement by the accused-appellant about existence of a debt; about his liability to repay the same to the complainant; about his having issued seven post-dated cheques; about the particulars of such cheques; and about the fact that the cheques given earlier had washed away in the rain water logging. Obviously, this writing, to be worth its evidentially value, had to bear the signatures of the accused, which it does. It is not unusual to have a witness to such a document so as to add to its authenticity; and, in the given status and relationship of the parties, Shri Jagdishbhai would have been the best witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily against the accused-appellant. 11. Having carefully perused the evidence be it ocular or documentary led on record by the respective parties, this Court is convinced and satisfied that complainant successfully proved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgments rendered by Hon'ble Apex Court as well as this Court, this Court finds no quarrel with the aforesaid proposition of law laid down by the Hon'ble Apex Court as well as this Court that in case complainant fails to establish that he/she was proprietor of the firm concerned, he/she has no locus standi to file complaint under Section 138 of the Act and complaint under Section 138 of the Act can only be made by the payee or by the holder in due course. But in the case at hand bare perusal of complaint filed by the complainant Anil Bansal itself reveals that he is the proprietor of Karyana Shop namely M/s. Roshan Lal Sons, which is proprietorship concerned. Complainant has categorically stated that accused used to purchase grocery items in wholesale from his shop, as detailed hereinabove, which fact is otherwise evident from bill Ex. CW1/A, perusal whereof reveals that on 15.11.2016, accused herein purchased 120 bags of sugar and 100 kg. Chickpea from the shop of the complainant. Since complainant specifically pleaded in the complaint that he is proprietor of firm concerned i.e. M/s. Roshan Lal Sons, it cannot be said that he had no locus standi to file the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No. 23 to 25 of the judgment herein:- 23. Further, a three judge Bench of this Court in the matter of Rangappa vs. Sri Mohan held that Section 139 is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies the strong criminal remedy in relation to the dishonour of the cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. The Court however, further observed that it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arefully examined the evidence available on record, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.P.C., to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate juris ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
