TMI Blog2022 (1) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... e same came to be dishonored. Since despite issuance of legal notice, accused failed to make good the payment, learned court below, in the totality of evidence led on record by the complainant, rightly held accused guilty of having committed offence punishable under S.138 of act and as such, no interference in the impugned judgment/order of conviction and sentence is called for. The present revision petition is dismissed being devoid of any merit. - Criminal Revision No. 117 of 2020 - - - Dated:- 24-11-2021 - Hon'ble Mr. Justice Sandeep Sharma For the Petitioner : Mr. H.S. Rangra, Advocate For the Respondent : Mr. Rajan Kahol, Advocate ORDER By way of instant Cr. Revision filed under S. 397 read with S.401 CrPC lays challenge to judgment dated 20.12.2019, passed by learned Additional Sessions Judge, Sundernagar, District Mandi, Himachal Pradesh in Cr. Appeal 72/2015, affirming judgment of conviction and order of sentence dated 14.8.2014 passed by learned Additional Chief Judicial Magistrate, Court No.1 Sundernagar, District Mandi, Himachal Pradesh in criminal complaint No. 38-I/2011// 30-III/2011, whereby learned court below, while holding petitioner- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... djourned the matter, but despite repeated adjournments, neither the accused has come present in the court nor has paid the entire amount of compensation to the complainant. 5. Today, during the proceedings of the case, learned counsel for the accused states that despite repeated communications, accused is not coming forward to impart instruction, as such, this court may decide the petition on its merit. 6. Having heard learned counsel for the parties and perused the material available on record this court finds it difficult to agree with learned counsel for the accused that the learned courts below have failed to appreciate evidence in its right perspective, rather this court finds that the complainant successfully proved on record that he had advanced ₹ 1,00,000 to the accused, who, in turn, had issued cheque Exhibit CW- 1/A with a view to discharge his liability. Though the accused in his statement recorded under S.313 CrPC denied the case of the complainant in toto but if the cross-examination conducted upon the complainant by defence counsel is perused in its entirety, it clearly establishes on record that the cheque in question was issued by accused in discharge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to make the payment within the time stipulated in the legal notice, he was compelled to institute complaint under S.138 of the Act. 11. Similarly, DW-1, who is son of the accused, has admitted factum with regard to issuance of cheque. This witness deposed that there was no dealing between his father and the complainant rather dealing was with Shri Rajender Saini, brother of the complainant. He also deposed that he had not borrowed any money but had given cheque, wherein amount was mentioned but no name was mentioned. This witness further deposed that his father had obtained a limit from State Bank of India and payments were made online into the account of Rajender Saini and nothing remained to be paid by the accused. This witness stated that the complainant refused to hand over the cheque. It is quite apparent from the cross-examination conducted upon the complainant and as well as from the statement of DW-1 Vinod Kumar that the accused had issued cheque in favour of the complainant for discharge of his lawful liability. Once there is no denial of issuance of cheque and signatures thereupon, presumption as available under Ss.118 and 139 comes into play. Section 118 and 139 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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 writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant. 19.2 The said witness Shri Jagdishbhai, while pointing out his acquaintance and friendship with the appellant as also with the respondent, asserted in his examination-in-chief, inter alia, as under: Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other. The accused had necessity of money in his business, in my presence, had demanded ₹ 22,50,000/- (Rupees twenty two lacs fifty thousandly) on temporary basis. And thereafter, the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of bringing on record such material which could tilt the preponderance of probabilities in his favour. 19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under : Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the financial difficulties having been arised, I have taken ₹ 22,500,000/- (Rupees twenty two thousand fifty thousand only- sic) from my group w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat , 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the 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 [3] held that Section 139 is an example of a reverse onu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy. 14. Having carefully 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.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In this regard, reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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