Dismissed

M/S Preet Hire Purchase and Leasing Corp. v. Kashmir Singh

Punjab & Haryana HC20 Sept 2013CRA-S/442/2010

Case brief

AI extract

What is this about?

In a criminal appeal against conviction under Section 138 of the Negotiable Instruments Act, the High Court dismissed the appeal. The court held that the High Court dismissed the appellant's appeal. The accused was convicted for issuing a bounced cheque, but the High Court found that the lower appellate court correctly acquitted the accused because the complainant failed to legally enforceable deb

What did the court decide?

Appeal dismissed; judgment of acquittal by the Additional Sessions Judge and conviction by the Trial Court upheld.

M/S Preet Hire Purchase and Leasing Corp. Vs… — Cheque Dishonour | Punjab & Haryana HC (2013)

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Crl. A. No. 442-SB of 2010 (O&M)

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IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

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Crl. A. No. 442-SB of 2010 (O&M) Date of decision : 30.09.2013

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M/s Preet Hire Purchase and Leasing Corpn, Jalandhar City

....Appellant

versus

Kashmir Singh

...Respondent

CORAM: HON'BLE MS. JUSTICE RITU BAHRI

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Present: Mr. P.S. Hundal, Sr. Advocate with Mr. Manu Loona, Advocate for the appellant

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Mr. M.S. Sachdeva, Advocate for the respondent

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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RITU BAHRI , J.

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The present appeal is directed against the judgment dated 08.07.2009, passed by the Addl. Sessions Judge, Jalandhar setting aside the judgment dated 01.04.2008 passed by Judicial Magistrate Ist Class, Jalandhar and acquitting the the accusedKashmir Singh of the charges framed against him.

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The facts, in brief are that the accused-respondent has taken a loan of Rs.2,71,000/-. He received loan of Rs.2,00,000/- on 22.10.2000, Rs.19,500/- on 21.08.2003, Rs.22,500/- on 22.08.2003 and Rs.29,000/- on 23.08.2003. The accused had executed a pronote receipts and vouchers etc in consideration of having

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Arora Gaurav 2013.10.31 17:23 I attest to the accuracy and integrity of this document

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Crl. A. No. 442-SB of 2010 (O&M)

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received the said loans from time to time and undertook to repay the same with interest on demand. But the accused did not repay the loan and as a result on 04.09.2003, an amount of Rs.5,91,000/-, inclusive of interest became due against the accused-Kashmir Singh. In order to discharge his liability, the accused issued a cheque bearing No. 25141 dated 04.09.2003 for Rs.5,91,000/- drawn on Vijaya Bank, Jalandhar . On presentation, the said cheque dishonored with the remark “insufficient funds”, vide memo dated 10.09.2003. The complainant-petitioner served a statutory notice dated 03.10.2003 to the accused to make a payment of the dishonored cheque within 14 days of the receipt of the notice but the accused did not give any reply to the notice nor he had repaid the loan. Thereafter, the complaint was registered against the accused-respondent under Section 138 of the Negotiable Instruments Act.

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The complaint was presented on 11.11.2003. Vide order dated 12.01.2004, the accused was summoned to face the trial u/s 138 of Negotiable Instruments Act.

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The petition-company examined its partner Manmeet Singh as C.W.1 who deposed through his affidavit Ex CW1/A and tendered into evidence copies of forms A and C as Ex C1 and C2, voucher dated 21.10.2000 Ex C3, receipt dated 21.10.2000 Ex C4, receipt dated 21.08.2003 Ex C5, voucher dated 22.08.2003 Ex C6, Pronote dated 23.08.2003 Ex C7 and receipt dated 23.08.2003 Ex C8 and statement of account as Ex C9, cheque dated 04.09.2003

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Arora Gaurav 2013.10.31 17:23 I attest to the accuracy and integrity of this document

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Crl. A. No. 442-SB of 2010 (O&M)

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as Ex C10, memo dated 10.09.2003 Ex C11, copy of legal notice Ex C12, registered postal receipt Ex C13 and certificate of posting as Ex C14.

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The statement of the accused, under Section 313 of the Code of Criminal Procedure was recorded. He was put all the incriminating circumstances, appearing against him in the prosecution evidence and has submitted that he borrowed a sum of Rs.2 lacs only from the complainant-petitioner in the year 2000, which he returned. The complaint-company received two blank signed cheques i.e 25141 and 25142 from him, which have been misused by the complainant. He never took any subsequent loan to the year 2000 and no amount is outstanding against him.He however did not lead any evidence in defence.

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The trial Court, after going through the entire evidence, convicted the accused on the ground that the complainant had led sufficient evidence to prove that he had given the loan of Rs. 2 lacs to the accused and thereafter in three instalmments and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- and in default of payment of fine to further undergo imprisonment for a period of two months, vide order date 01.04.2008 passed by Judicial Magistrate, Ist Class, Jalandhar.

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Feeling aggrieved against the judgment of conviction and order of sentence, rendered by the trial Court, the appeal was filed by the accused-respondent. The appeal was allowed and the Arora Gaurav 2013.10.31 17:23 I attest to the accuracy and integrity of this document

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Crl. A. No. 442-SB of 2010 (O&M)

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accused was acquitted of the charges framed against him, vide order dated 08.07.2009, passed by the Addl. Sessions Judge, Jalandhar. Hence the present revision petition. He has been acquitted on the following grounds:-

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That the loan of Rs. 2 lacs was given to the accused through cheque No. 197117 dated 21.10.2000 drawn on Vijaya Bank. As per Ex C4 the loan was to be returned within three months i.e 20.01.2001. As per statement of account Ex C9 up to 20.01.2001, a sum of Rs. 12,000/- only was repaid by the accused and thereafter uptil 15.04.2001, he had repaid Rs. 24,000/-. After 15.04.2001, he did not pay even a penny for 2 ½ years. Despite the accused did not pay any loan, the complainant-petitioner paid a further cash loan of Rs. 19,500/-, Rs,22,500/- and Rs.29 ,800/- on 21.08.2003, 22.08.2003 and 23.08.2003. The conduct of the complainant was held to be not of a prudent man.

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Further, the accused had admitted that he had taken a loan and was issued receipt Ex C4 but keeping in view that he had repaid only Rs. 24,000/- up to 15.04.2001and thereafter, as per statement of account Ex C9, he was extended further cash loan uptil 23.08.2003 by the company, the probable presumption was raised in favour of the accused. As per Section 139 and 118 of the Evidence Act, it was the complainant who had to prove that he had legally enforceable debt under Section 138 of the Negotiable Instruments Act for which the cheque had been issued by the accused.

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Arora Gaurav 2013.10.31 17:23 I attest to the accuracy and integrity of this document

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Crl. A. No. 442-SB of 2010 (O&M)

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The plea of the complainant that after taking loan of Rs. 2 lacs, the accused had given a cheque of Rs.5,19,000/-(including interest) which included the subsequent loans extended on 21.08.2003, 22.08.2003 and 23.08.2003 and some other extraneous amount of Rs.17,492/- as visiting and contingency charges. However, it has not been explained by the complainant as to what was the liability of the accused to pay the said charges. In his statutory legal notice Ex C12, the complainant has mentioned about an agreement, which have entered into between the parties at the time of extension of loan of Rs.2 lacs on 21.10.2000, but the said agreement has not been produced in the Court. Further, an amount of Rs.17,492 has also been included in the outstanding liability without leading any proof regarding it, in itself makes out that a signed cheque in blank must be available with the complainant, which was filled in for a sum of Rs.5,91,000/by the complainant. Thus, the cheque given by the respondent had been misused by the complainant.

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The Lower Appellate Court while examining the cheque in question Ex C10 held that it has not been filed in by by one hand because its body writing is with some different hand. The signature on the cheque is admitted by the accused.

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After taking loan of Rs.2 lacs which was to be returned @3% per month, as per calculation up to 04.09.2003, it would not come to 5,91,000/- exactly. Since there is no agreement placed on the record by the complainant that three subsequent loans were

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Arora Gaurav 2013.10.31 17:23 I attest to the accuracy and integrity of this document

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Crl. A. No. 442-SB of 2010 (O&M)

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also given by the complainant to the accused and it was agreed that Rs. 17492/- will paid by the accused as visiting and contingency charges, therefore, the cheque amount of Rs.5,91,000/- as presented by the complainant, is not an amount of legally enforceable debt under Section 138 of Negotiable Instruments Act.

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This aspect has been considered by Hon'ble the Supreme Court in cases of Krishna Janardhan Bhat vs. Dattatraya G. Hegde, 2008(1) Civil Court Cases 716 (SC) and P. Venugopal vs. Madan P. Sarathi, 2009(1) Civil Court cases 54.

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In paragraph 13 of Krishna Janardhan's case (supra), it has been observed as under

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“13. It again referred to a decision of this Court in K. Bhaskaran v. Sankaran Vaidhyan Balan and Others [AIR 1999 SC 3762 and made almost a similar observation holding that as the complainant has discharged his initial burden, the onus shifted on the accused to produce rebuttal evidence against the presumption laid down in favour of the complainant stating:

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Here, the accused has not produced any evidence to discard the testimony of PW-1. Therefore, the presumption is to be drawn in favour of the holder of the cheque, who has received it for discharge of liability in view of the decision of the Hon'ble Supreme Court”

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As per the above judgment of Hon'ble the Supreme Court, the burden shifts on the complainant to prove that he cheque in question has been issued by the accused for discharge Arora Gaurav of his legally enforceable debt.

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Arora Gaurav 2013.10.31 17:23 I attest to the accuracy and integrity of this document

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Crl. A. No. 442-SB of 2010 (O&M)

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The complainant could not prove that there was an agreement with regard to taking of loan and that Rs.17,492/- will be paid towards visiting and contingency charges by the accused. Reference of this agreement has been made in the legal notice but no such agreement has been produced in the Court. The accused had raised the probable presumption that he was not liable to make the amount of cheque in question, which was given as security but the complainant has failed to discharge the onus which was caste upon him to prove that a cheque of Rs.5,91,000/was given as per the agreement effected between the parties.

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In view of the above, judgment dated 08.07.2009, passed by the Addl. Sessions Judge, Jalandhar does not require any interference by this Court.

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The appeal is dismissed.

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30.09.2013 G.Arora

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(RITU BAHRI) JUDGE

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Arora Gaurav 2013.10.31 17:23 I attest to the accuracy and integrity of this document

M/S Preet Hire Purchase and Leasing Corp. v. Kashmir Singh

Case brief

What is this about?

What did the court decide?

M/S Preet Hire Purchase and Leasing Corp. v. Kashmir Singh

Case brief

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