Dismissed

Ajay Kumar v. Prittam Chand and Anr.

Himachal Pradesh HC22 Dec 2022CR.R/41/2022

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh dismissed a criminal revision petition challenging a conviction and sentence for cheque dishonour under Section 138 of the Negotiable Instruments Act. The court held that the lower courts followed due procedure under Sections 251 and 252 of the Cr.P.C. before convicting the accused on a voluntary plea of guilty.

What did the court decide?

The criminal revision petition is dismissed, upholding the conviction and sentence imposed by the courts below.

Ajay Kumar Vs Prittam Chand and Anr. — Cheque Dishonour | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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	Cr. R No.41 of 2022 Decided on: 22.12.2022
Ajay Kumar Prittam Chand	.…Petitioner Versus . …Respondent
*Coram*
*The Hon’ble Mr. Justice S*	*andeep Sharma.*
Whether approved for rep	orting?¹Yes.
For the Petitioner	: Mr. Navlesh Verma, Advocate.
For the Respondents	: Mr. Shubham Sharma, Advocate, for respondent No.1. Mr. Anup Rattan, Advocate General with Mr. Sudhir Bhatnagar, Additional Advocate General, for respondent No.2.

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Sandeep Sharma, Judge (Oral)

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Instant criminal revision petition filed under Section 397 of the Cr.P.C., lays challenge to Judgment dated 09.12.2021 passed by learned Sessions Judge, Kangra at Dharamshala in Cr. Appeal No. 3- D/X/2019, affirming judgment of conviction dated 28.02.2019 and order of sentence dated 06.03.2019 passed by learned Judicial Magistrate First Class, Kangra District Kangra, H.P, whereby learned Court below while holding petitioner-accused guilty of his having committed offence punishable under Section 138 of the Negotiable Instrument Act, convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs.1,75,000/- to the complainant.

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1 Whether reporters of the local papers may be allowed to see the judgment?

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Precisely, the facts of the case, as emerged from the record are that the respondent-complainant instituted proceedings under Section 138 of the Act in the Court of learned Judicial Magistrate, First Class, Kangra District Kangra, H.P., alleging therein that in the month of July, accused requested him to supply bricks at Naddi and Darnu. He alleged that he supplied 20,000 bricks in the month of July at the rate of Rs.30,000/- per truck, each truck carrying 4,000 bricks. He further alleged that bricks amounting to Rs. 1,50,000/- were supplied to the accused, who with a view to discharge his lawful liability, issued cheque bearing No. 391731 dated 01.08.2017, amounting to Rs. 1, 50,000/- drawn on Punjab National Bank TCV Dal Kangra, H.P. However, fact remains that aforesaid cheque on its presentation to the bank concerned was dishonoured on account of insufficient funds” in the account of the accused. Since despite having received legal notice, accused failed to make payment good well within stipulated time, complainant was compelled to institute proceedings under Section 138 of the Negotiable Instrument Act in the competent Court of law.

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Learned Trial Court after having recorded preliminary evidence and going through the contents of the complaint found sufficient reasons to summon the accused for commission of offence punishable under Section 138 of Negotiable Instrument Act and accordingly, gave notice of acquisition to the following effect:-

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“Whereas, an information has been led before me that you issued a cheque bearing No.391731 dated 01.08.2017 amounting to Rs.1,50,000/- in favour of the complainant, in order to discharge your liability, but the same were dis-honoured/bounced back with the remarks “Funds Insufficient” and further you failed to pay the said amount despite notice of the complainant and you thereby committee an offence punishable under Section 138 of the Negotiable Instruments Act and within the cognizance of this Court.

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While answering aforesaid notice of acquisition, accused

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pleaded guilty. On account of admission made by petitioner-accused, learned trial Court after following due procedure of law, convicted and sentenced him as per description given hereinabove.

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Being aggrieved and dissatisfied with the aforesaid judgment of conviction order of sentence, accused preferred an appeal in the Court of learned Sessions Judge, Kangra at Dharamshala, but since petitioner-accused was not convicted on a trial held by learned Trial Court but on his plea of guilty, he ought to have filed appeal under Section 375 of Cr.P.C. Accordingly, learned Sessions Judge, Kangra at Dharamshala converted the appeal filed under Section 374 Cr.P.C into appeal under Section 375 Cr.P.C. However, fact remains that learned Sessions Judge upheld the finding of the judgment of conviction and order of sentence recorded by the Trial Court. In the aforesaid backdrop, petitioner-accused has approached this Court to the instant proceedings, praying therein for his acquittal after setting aside the judgment of conviction and order of sentence recorded by Courts below.

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Vide order dated 14.01.2022, this Court suspended the substantive sentence imposed by the Court below subject to petitioner depositing 50% of the compensation amount and furnishing personal bond in the sum of Rs.25,000/- within a period of six weeks. However, fact remains that aforesaid order never came to be complied with despite repeated opportunities. On 12.12.2022, counsel representing petitioner apprised this Court that despite repeated communication, petitioner is not coming forward to impart instruction, however, on his request this Court further granted ten days time, enabling him to send the written communication to the petitioner. It appears that petitioner despite having received written communication from his counsel, is not coming forward to impart instruction and as such, this Court has no option, but to decide the petition on its own merit.

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Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned by learned Sessions Judge, Kangra whiling deciding the appeal and upholding the judgment conviction and order of sentence passed by trial Court, this Court is not persuaded to agree with Mr. Sh. Navlesh Verma, learned counsel representing petitioner-accused that both the Courts below have failed to appreciate the evidence in its right perspective, rather, this Court finds that judgment of conviction order of sentence passed by the Court below is purely based upon admission made by the petitioner accused that he had issued cheque in question but same was dishonoured. Sh.

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Navlesh Verma, learned counsel representing the accused argued that no proper procedure was followed by trial Court, after petitioner-accused had allegedly pleaded guilty. He submitted that pleading guilty at the time of notice of acquisition may not be sufficient to prove guilt of the accused, rather at that stage, Magistrate hearing the matter ought to have given time to the petitioner-accused to re-think which in the instant case has not been done. He further submitted that once the petitioner had admitted his guilt, Court below ought to have granted some reasonable time to deposit the amount but in the case at hand, Court below straightway, on the basis of admission made by the accused proceeded to convict and sentence him under Section 138 of the Act.

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Having perused the evidence/documents made available on record, this Court finds no force in the aforesaid submissions of Sh. Navlesh Verma, learned counsel representing the petitioner because bare perusal of record reveals that the trial Court after having perused pleadings as well as documents annexed therewith and after recording preliminary evidence of complainant, on affidavit proceeded to issue notice of acquisition to the petitioner, as has been reproduced above. Since the accused admitted his guilt on the very first date, there was no occasion, if any, for trial Court to proceed with the trial, rather at that stage, Court below ought to have reminded petitioner accused of his right of trial. Beside this, Court, at that stage, could also grant time to re-think. Section 252 of Code clearly provides that if the accused pleads guilty,

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such a plea shall be recorded by the Magistrate as nearly as possible in the words used by the accused and thereafter Magistrate merely on the basis of such plea, may pass order of conviction on such plea under Sections 251 and 252 of the Code, are reproduced in below.

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“251 When in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge.

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252. Conviction on plea of guilty. If the accused pleads guilty, the Magistrate shall record the plea as nearly as possible in the words used by the accused and may, in his discretion, convict him thereon”.

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Bare perusal of Section 251 suggests that though no charge is required to be framed against the accused but accused is to be apprised of the accusation particulars offence by the Magistrate enabling the accused to know what precise charge has been framed against him. Full particulars offences are to be stated to the accused and record must reflect the particulars which were stated in the answer given by him. If provisions contained under S.251 and 252 are perused in conjunction, they clearly provide that particulars of offence in charge must contain the ingredients of the offence for which the prosecution has been lodged against him. Under Section 251, Registry is not only required to state the particulars of the offence but also must inquire from the accused whether he pleads guilty or has any defence to make. Similarly under Section 252 of the Cr.PC it is the duty of the Magistrate to record the statement of the accused and such statement is to be recorded as nearly as possible in

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the words used by the accused. Requirement of this provision is mandatory and any violation vitiates the trial. However before the accused is convicted on his plea of guilt, Magistrate can exercise discretion either to accept the plea of guilt or not to accept the same. If the notice of accusation put to petitioner in the case at hand is read in its entirety, specific notice was put to him that he had issued cheque bearing No. 391731 dated 1^st August, 2017 amounting to Rs. 1,50,000/- in favour of the complainant, with a view to discharge his liability, but the same was dishonoured due to insufficient funds.

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Record reveals that question was put to accused whether he understood the notice of accusation but accused answered the same in the affirmative. He was then asked by learned trial Court as to whether he pleads guilty or had any defence but accused stated that the allegations are correct. In view of the above, no option was left with the Trial Court but to convict petitioner-accused of his having committed offence punishable under Section 138 of Negotiable Instruction Act on the basis of admission to the charge framed against him.

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Having carefully scanned the judgment passed by trial Court, this Court is not persuaded to agree with Mr. Navlesh Verma, counsel for the petitioner that trial Court failed to comply with the provisions under Section 252 of Code, rather the record reveals that due and proper procedure was followed by the trial Court before holding petitioner accused guilty of offence punishable under Section 138 of the Negotiable

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Instrument Act on the basis of admission made by accused. Leaving everything aside, at no point of time accused denied factum of his having issued cheque as well as signature thereupon, as a result of which presumption under Section 139 comes into play in favour of holder of cheque that the same was issued in discharge of lawful liability. Moreover, apart from above, this Court finds that at no point of time petitioner accused made, attempt, if any under Section 145 (2) of Negotiable Instrument Act for cross-examination of complainant and as such no illegality and infirmity can be said to have been committed by trial Court, while holding petitioner accused guilty of offence punishable under Section 138 of the Act. Judgment of learned Sessions Judge clearly reveals that the same is based upon proper appreciation of facts as well evidence available on record. Learned Sessions Judge while upholding the judgment passed by the trial Court has dealt with each and every aspect of the matter and has rightly come to a conclusion that due and proper procedure as envisaged under Sections 251 and 252 of the Cr.PC has been followed by the trial Court, whiling recording conviction on the basis of admission made by the petitioner accused.

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Consequently, in view of the above, this Court finds no merit in the present petition. Accordingly, the same is dismissed.

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(Sandeep Sharma) Judge

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December 22, 2022 (tarun)

Ajay Kumar v. Prittam Chand and Anr.

Case brief

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Ajay Kumar v. Prittam Chand and Anr.

Case brief

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