Dismissed

Shisham Kumar v. Bisheshar Lal

Himachal Pradesh HC1 Aug 2024CR.R/131/2023

Case brief

AI extract

What is this about?

The High Court dismissed the criminal revision petition challenging a conviction and sentence under Section 138 of the Negotiable Instruments Act. The Court found the accused failed to rebut the statutory presumption regarding the validity of the consideration for a cheque issued as security, upholding the lower courts' judgments.

What did the court decide?

The criminal revision petition is dismissed. The petitioner is directed to surrender to serve the sentence. Bail bonds are cancelled.

Shisham Kumar Vs Bisheshar Lal — Cheque Dishonour | Himachal Pradesh HC (2024)

¶1

2024:HHC:6287

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

Cr. Revision No.131 of 2023 Date of Decision: 01.08.2024

¶4

__________________________________________________________________________ Shisham Kumar ……...Petitioner Versus Bisheshar Lal …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner: Ms. Rita Goswami, Senior Advocate, with Ms. Komal Chaudhary, Advocate. For the Respondent: Mr. Kulwant Singh Gill and Mr. Pankaj Mehta, Advocates. __________________________________________________________________________

¶5

Sandeep Sharma, J. (Oral)

¶6

Instant criminal revision petition filed under Section 397 read with Section 401 Cr.P.C., lays challenge to judgment dated 06.12.2022, passed by the learned Sessions Judge, Kinnaur Sessions, Division at Rampur Bushahr, District Shimla, Himachal Pradesh, in Criminal Appeal No.11 of 2022, titled Shisham Kumar Vs. Bisheshar Lal , affirming judgment of conviction and order of sentence dated 16.03.2022, passed by the learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, Himachal Pradesh, in Criminal Complaint No.80-3-2018, whereby the learned trial Court while holding the petitioner-accused (hereinafter, “ accused” ) guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and

¶7

2024:HHC:6287

¶8

¶9

sentenced him to undergo simple imprisonment for a period of one year and pay compensation to the tune of Rs.2,58,000/- to the respondentcomplainant.

¶10

Precisely, the facts of the case, as emerge from the record are that respondent-complainant (hereinafter, ‘ complainant ’) instituted a complaint under Section 138 of the Act, in the competent Court of law, alleging therein that in the month of September 2017, accused purchased apple crop from the complainant for a sum of Rs.4,65,000/- and with a view to discharge his liability, issued two Cheques amounting to Rs.2,00,000/- each and promised to pay the balance amount in few days. Though, one Cheque amounting to Rs.2,00,000/- was encashed, however, second Cheque Ex.CW1/B came to be dishonoured on account of insufficient funds vide return memo Ex.CW1/C issued by the Bank. Since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Rampur Bushahr, District Shimla, Himachal Pradesh.

¶11

Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 16.03.2022, held the petitioner-accused guilty of having committed offence under Section 138 of

¶12

2024:HHC:6287

¶13

¶14

the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.

¶15

Though, at the first instance, accused preferred an appeal in the Court of learned Sessions Judge, Kinnaur Sessions, Division at Rampur Bushahr, District Shimla, Himachal Pradesh, however, same was dismissed vide judgment dated 06.12.2022. In the aforesaid background, present petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the Courts below.

¶16

Vide order dated 14.03.2023, this Court suspended the substantive sentence imposed by the trial Court, subject to petitioner/accused depositing 30% of the compensation amount and furnishing bail bonds. Though, in terms of aforesaid order, 30% of the compensation amount was deposited, but on 14.05.2024, accused stated before this Court that he is ready and willing to pay the entire amount of compensation and for that purpose, repeatedly matter was adjourned. However, neither balance amount ever came to be deposited, nor petitioner despite notice came present. In the aforesaid background, learned Senior Counsel representing the petitioner fairly stated that this Court may proceed to decide the petition, on its own merits.

¶17

2024:HHC:6287

¶18

¶19

Having heard learned counsel for the parties and perused material adduced on record, vis-a-vis reasoning assigned in the impugned judgments, this Court finds that no reason to agree with Ms. Rita Goswami, learned Senior Counsel representing the petitioner that Courts below have fallen in grave error while appreciating the evidence, rather this Court finds that both the Courts below have meticulously dealt with each and every aspect of the matter and there is no scope left for interference.

¶20

Pleadings as well as evidence adduced on record clearly reveals that at no point of time, accused disputed factum with regard to his having issued Cheque and his signatures thereupon, rather, in his statement recorded under Section 313 Cr.P.C., he simply stated that Cheque in question was issued as a security, but the same was misused. Though, opportunity was afforded to accused to lead evidence to probabilize his defence, however, he failed to avail that opportunity. Since factum with regard to issuance of Cheque as well as his signatures thereupon never came to be disputed, both the Courts below rightly invoked Sections 118 and 139 of the Act, which speak about presumption in favour of the holder of the cheque that cheque was issued towards discharge of a lawful liability. No doubt, aforesaid presumption is rebuttable, but to rebut such presumption, accused either can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading

¶21

2024:HHC:6287

¶22

¶23

positive evidence, if any. However, in the instant case, despite sufficient opportunities, petitioner-accused failed to lead evidence.

¶24

8 . 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 ofence f comes into play. It would be proftable to reproduce relevant paras No.23 to i 25 of the judgment herein:-

¶25

“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 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 138can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong

¶26

2024:HHC:6287

¶27

¶28

whose money is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant accused cannot be expected to discharge an unduly high standard of proof”. The Court further observed that it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is all preponderance of probabilities.

¶29

Therefore, 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. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is inconceivable that in some cases the accused may not need to adduce the evidence of his/her own. If however, the accused/drawer of a cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play if the same is not rebutted with regard to the materials submitted by the complainant.

¶30

25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting

¶31

2024:HHC:6287

¶32

¶33

an ofence, hence punishable. But even in such cases, the f 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 suf fi ciency of funds and whether the same would be a suf fi cient ground to proceed in the matter, would be extremely heavy.”

¶34

In the case at hand, complainant in order to prove his case examined himself as CW-1. He filed affidavit Ex.CW1/A, reiterating therein averments contained in the complaint. He also successfully proved on record Cheque Ex.CW1/B, Cheque return memo Ex.CW1/C, postal receipt Ex.CW1/D and legal notice Ex.CW1/E. If cross-examination conducted upon this witness is perused in its entirety, it can be safely concluded that accused was unable to extract anything contrary to what this witness stated in his examination-in-chief. To the contrary, despite opportunity given to the accused to lead evidence, he failed to do that. In his statement recorded under Section 313 Cr.P.C., though accused denied his liability, but was unable to state that under what circumstances and for what purpose, Cheque, may as a security, was issued in favour of complainant. Similarly, this Court finds that before initiating proceedings under Section

¶35

2024:HHC:6287

¶36

¶37

138 of the Act, complainant served accused with legal notice Ex.CW1/E, which was duly received by the accused, but he never replied to the same, meaning thereby, he admitted the contents of the legal notice, wherein factum with regard to his liability to pay the Cheque amount stood duly recorded.

¶38

By now it is well settled that dishonour of cheque issued as security can also attract offence under Section 138 of the Negotiable Instruments Act. Hon’ble Apex Court in case titled Sripati Singh v. State

¶39

of Jharkhand, Criminal Appeal No. 1269-1270 of 2021, decided on 28.10.2021, has held as under:

¶40

“16. A cheque issued as security pursuant to a f i nancial transaction cannot be considered as a worthless piece of paper under every circumstance. ‘Security’ in its true sense is the state of being safe and the security given for a loan is something given as a pledge of payment. It is given, deposited or pledged to make certain the fulf i lment of an obligation to which the parties to the transaction are bound. If in a transaction, a loan is advanced and the borrower agrees to repay the amount in a specif i ed timeframe and issues a cheque as security to secure such repayment; if the loan amount is not repaid in any other form before the due date or if there is no other understanding or agreement between the parties to defer the payment of amount, the cheque which is issued as security would mature for presentation and the drawee of the cheque would be entitled to present the same. On such presentation, if the same is dishonoured, the consequences contemplated under Section 138 and the other provisions of N.I. Act would f l ow.”

¶41

2024:HHC:6287

¶42

¶43

Needless to say, expression “Security cheque” is not a statutorily defined expression in the Negotiable Instruments Act, rather same is to be inferred from the pleadings as well as evidence, if any, led on record with regard to issuance of security cheque. The Negotiable Instruments Act does not per se carve out an exception in respect of a “security cheque” to say that a complaint in respect of such a cheque would not be maintainable as there is a debt existing in respect whereof the cheque in question is issued, same would attract provision of Section 138 of the Act in case of its dishonour.

¶44

Having scanned the entire evidence adduced on record by the respective parties, this Court finds that all the basic ingredients of Section 138 of the Act stand met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds and he despite having received legal notice failed to make the payment good within the stipulated time, complainant had no option but to institute proceedings under Section 138 of the Act, which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties.

¶45

2024:HHC:6287

¶46

¶47

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:-

¶48

“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 jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.”

¶49

Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the Courts below, while passing impugned judgments, there is no occasion, whatsoever, to exercise the revisional power.

¶50

2024:HHC:6287

¶51

¶52

True it is that the Hon’ble Apex Court in Krishnan and another Versus Krishnaveni and another, (1997) 4 Supreme Court Case 241; has held that in case Court notices that there is a failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is salutary duty of the High Court to prevent the abuse of

¶53

the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior criminal court in its judicial process or illegality of sentence or order, but learned counsel representing the accused has failed to point out any material irregularity committed by the Courts below while appreciating the evidence and as such, this Court sees no reason to interfere with the well reasoned judgments passed by the Courts below.

¶54

Consequently, in view of the discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, this Court sees no valid reason to interfere with the well reasoned judgments 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. 17. Accordingly, the present criminal revision petition is dismissed being devoid of any merit. The petitioner is directed to surrender himself before the learned trial Court forthwith to serve the sentence as awarded by the learned trial Court, if not already served. Bail bonds of the petitioner

¶55

2024:HHC:6287

¶56

¶57

are cancelled and discharged accordingly. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of.

¶58

The amount, if any, deposited with the learned trial Court is ordered to be released in favour of the complainant-respondent, by remitting the same in his saving bank account, details whereof, shall be furnished by learned counsel for the respondent-complainant within a period of one week and for recovery of remaining amount, respondentcomplainant may file appropriate proceedings in appropriate Court of law.

¶59

(Sandeep Sharma), Judge

¶60

August 01, 2024 (Rajeev Raturi)

Shisham Kumar v. Bisheshar Lal

Case brief

What is this about?

What did the court decide?

Shisham Kumar v. Bisheshar Lal

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Atul Vs State of Hp

Murari Lal Vs State of Hp and Another

Gulab Chauhan Vs Satish Mehta

Ranjeet Singh Mehta Vs Joginder Singh

Prem Gaurav Vs Sarita Rana

Manmohan Singh and Ors. Vs Kamla Devi and Ors.