Harbhajan Singh Ahuja vs Sukhdev Singh and Another

A.N. Jindal, J.—This petition has arisen out of the judgment dated 20.04.2011 passed by the learned Additional Sessions Judge, Jalandhar

dismissing the appeal against the judgment dated 29.05.2009 convicting and sentencing the accused/petitioner (herein referred as the petitioner) to

undergo R.I. for one year and to pay a fine of Rs. 2,000/- u/s 138 of the Negotiable Instruments Act.

The petitioner had raised a family loan of Rs. 2,00,000/- from the complainant/respondent (herein referred as the respondent), and in order to

discharge debt, the petitioner had issued a cheque No. 071350 dated 13.8.2006 for a sum of Rs. 2,00,000/- drawn on the Bank of Punjab Ltd.

MGN Public School, Adarsh Nagar, Jalandhar out of his bank account No. 2188. On tendering of the said cheque, it was returned with the

remarks ''insufficient funds'' vide memo dated 15.09.2006. Consequently, the accused/respondent was served with a legal notice dated

25.09.2006 which was not replied, hence the complaint was filed by him against the petitioner.

After recording preliminary evidence, the petitioner was summoned and was issued notice of accusation which was contested by him. During

trial, the complainant led oral as well as documentary evidence.

When examined u/s 313 Cr.PC, the petitioner denied all the incriminating circumstances appearing against him and pleaded his false implication.

In his defence, he examined his son Bhupinder Singh (DW 1) in order to contend that his son had taken a loan of Rs. 20,000/-and he had issued a

blank cheque as security and loan was repaid but the cheque was not returned. The trial court while observing that Bhupinder Singh (DW 1) is not

a truthful witness and his statement is not enough to shift the onus, convicted the petitioner. His appeal was also dismissed. The

complainant/respondent while proving the receipt of loan raised by the petitioner has also proved issuance of cheque (Ex.C.1) by the petitioner. He

has proved the memo dated 15.09.2006 which was received from the bank with the remarks ''insufficient funds'' vide memo Ex.C.2. Besides

proving notice Ex.C.3, he has also proved postal receipt Ex.C.4 and UPC Receipt Ex.C.5.

The petitioner, on the other hand, has failed to rebut the presumption as envisaged u/s 139 of the Act by leading any cogent and convincing

evidence that the loan was not advanced to him and the cheque was not in discharge of any legally enforceable liability.

To the contrary, his stand only is that he had signed the cheque when it was blank and it was by way of security against the loan taken by his son

Bhupinder Singh, however, after the loan was repaid, cheque was not returned by the complainant to him.

Both the courts below have returned findings of fact that the cheque was issued for discharging legally enforceable liability and he has failed to

shift the onus.

The judgment delivered by the Apex Court in case Krishna Janardhan Bhat v. Dattatraya G. Hege, 2008 (1) RCR (criminal) 695 as relied upon

by the counsel for the petitioner is distinguishable and is not applicable to the facts of the present case.

The arguments that the complainant does not state if he issued the cheque in his personal capacity or as proprietor of the business concern and

that he did not produce the books of accounts, are of no consequence as neither any question was asked during the cross-examination to the

respondent nor such documents were sought to be produced in the present case.

I also do not find any merit in the contention raised by the learned counsel for the petitioner that the onus lay heavily upon the complainant to

prove that the cheque was issued for legally enforceable liability. As presumption is attached to the fact that if the cheque was issued then it will be

presumed that it was issued for consideration and in those circumstances, it was not necessary for the complainant to prove that there was some

existing liability. It was observed in case M/s M.M.T.C. Ltd. & Anr. v. M/s Medchl Chemicals Pharma P.Ltd. & Anr. 2002(1) R.C.R.(Criminal)

318:2002 (1) Civil Court Cases, 13, as under :-

There is, therefore, no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of

proving that there is no existing debt or liability, was on the respondents. Thus they have to discharge in the trial. At this stage, merely on the basis

of averments in the petition filed by them the High Court could not have concluded that there was no existing debt or liability.

This court merely on the basis of the pleadings in the revision cannot proceed to decide that it was not against such liability. Since the evidence

has already been appreciated, therefore, now re-appreciation of evidence is not called for while exercising supervisory powers at this revisional

stage, which are very restricted and limited at this stage.

Both the courts below have returned concurrent findings of fact that the cheque was issued in discharge of his legally enforceable liability which

was dishonoured. Signatures on the cheque have been admitted. Defence plea is contradictory.

Interference could be made only if the judgment is based on mis-appreciation of evidence after ignoring some material evidence;

misinterpretation of law and misreading of evidence or when the judgment is palpably wrong, perverse and suffers from manifest illegalities and

infirmities.

Law does not require re-appreciation of evidence at the revisional stage. It was observed by the Apex Court in the judgment delivered in Duli

Chand Vs. Delhi Administration, , that the High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it

would have been justified in refusing to re-appreciate the evidence for the purpose of determining whether the concurrent finding of fact reached by

the learned Magistrate and the learned Additional Sessions Judge was correct.

While further elaborating the scope of interference by the High Court in exercise of revisional jurisdiction in case of Vimal Singh Vs. Khuman

Singh and Another, Hon''ble Supreme Court held that the interference by the High Court in exercise of revisional jurisdiction is limited to the

exceptional cases viz. (i) when it is found that order under revision suffers from glaring illegality or has caused miscarriage of justice; (ii) When it is

found that trial court has no jurisdiction to try the case; (iii) Where trial court has illegally shut out the evidence which otherwise ought to have been

considered and (iv) Where material evidence which clinches the issue has been overlooked. K. Chinnaswamy Reddy Vs. State of Andhra

Pradesh,

But on scrutiny of the impugned judgment, it transpires that the judgment does not suffer from any manifest illegality much less perversity

warranting interference by this court.

No merit.