Gurmit Singh vs Inder Pal Singh

K.C. Puri, J.—This is an appeal directed by the complainant against the judgment dated 23.3.2007 passed by Shri Karnail Singh, Additional Sessions Judge, Jalandhar vide which the learned Additional Sessions Judge, accepted the appeal and dismissed the complaint u/s 138 of the Negotiable Instruments Act (in short - NI Act) filed by the complainant-appellant after setting aside the order dated 2.12.2005 passed by Shri. G.S. Dhillon, Judicial Magistrate 1st Class, Jalandhar, who convicted and sentenced the accused- respondent.

Brief facts of the case are that the complainant and the accused had friendly relations and the complainant gave Rs. 3 lacs to the accused and in order to discharge his legal liability, accused-respondent issued cheque dated 9.6.2003 for a sum of Rs. 3 lacs drawn on Punjab & Sind Bank, Tanda Urma Branch, Hoshiarpur. The said cheque on presentation was dishonoured being insufficient funds. Thereafter, legal notice was served upon the accused calling him to make the payment of amount of the said cheque within statutory period but of no use, hence the complaint.

After recording preliminary evidence, the accused-respondent was ordered to be summoned to stand trial u/s 138 of the N.I. Act On appearance of the accused and after hearing both the learned counsel for the parties, the trial Court served notice u/s 138 of the N.J. Act, upon the accused-respondent, to which he pleaded not guilty and claimed trial.

The complainant-accused himself entered into the witness box as CW-1 and closed his evidence.

Statement of the accused/respondent was recorded u/s 313 Cr.P.C. wherein all the incriminating evidence was put to him, which he denied and pleaded his false implication. However, in defence the accused himself stepped into the witness box as DW-1 and also examined Hazara Singh as DW-2 and closed the defence evidence.

The trial Court after hearing the learned counsel for the parties convicted and sentenced the accused vide order dated 2.12.2005. However, the learned Additional Sessions Judge, Jalandhar accepted the appeal and dismissed the complaint vide judgment dated 23.3.2007.

Feeling dissatisfied with the aforesaid judgment passed by the learned Additional Sessions Judge, Jalandhar, the complainant-appellant has filed the present appeal as well as application u/s 378(4) of the Code of Criminal Procedure (in short - Cr.P.C).

I have heard learned counsel for the parties and have gone through the case file.

Learned counsel for the appellant has submitted that the learned Additional Sessions Judge has wrongly held that the cheque in question is without consideration. It is submitted that there is presumption u/s 139 of the N.I.Act that cheque is for consideration unless contrary is proved. The mere fact that loan was advanced by a firm does not debar the complainant to advance loan to the accused/respondent in his personal capacity. So. the finding of the First Appellate Court in this regard are wrong. The leave to appeal be granted and accused be convicted. Learned counsel for the appellant has relied upon the following authorities :-

(1) Hiten P. Dalal v. Bratindranath Banerjee, 2001 (3) R.C.R. (Cri) 460;

(2) Hemant Pavel Gracias v. Socorro Santan Fernandes, 2008 (1) CCC 743 (Bom) ;

(3) Rangappa v. Mohan, 2010 (3) RCR (Cri) 164; and

(4) Ganga Prashad v. Lalit Kumar, 2008 (3) RCR (Cri) 159.

I have considered the said submissions made by learned counsel for the appellant and have, gone through the records of the case.

The learned First Appellate Court has observed that the firm in which complainant was a partner advanced a loan of Rs. 80,000/- in the year 2001. It has also come on the record that accused committed default in payments of the instalments and accordingly in the year 2002, the Van was seized. The learned trial Court has given a finding that it would not be possible for the complainant to advance loan in the year 2003 as the accused is already a defaulter. That finding of the trial Court appeals to the reason. No sane person would advance loan to a person who has already committed default in the payment of instalments of loan raised from the firm of which complainant is a partner. So much so, van was taken into possession in the year 2002 in respect of default. It is not possible that after such development anybody can advance the loan to such a defaulter. So, the trial Court has rightly held that accused has been able to prove the fact that cheque of Rs. 3,00,000/- is not for consideration. It so seems that at the time of advancement of the loan the firm might have taken some blank cheque in respect of payment of instalment of the loan for purchase of van and that cheque has been seemed to be used for filing a complaint.

So far as authorities Hiten P. Dalai, (2) Hemant Pavel Gracias, Rangappa and Ganga Prashad are concerned, these are distinguishable as in those cases cheque was not issued after the default of earlier loan. So much so in these authorities, no specific stand regarding issuance of cheque was taken. So, these authorities are distinguishable.

In view of the above discussion, the application for grant of leave to appeal is without any merit and the same stands dismissed.

Consequently, the appeal also stands dismissed.