Jagpreet Singh vs Rajwinder Kaur

Paramjit Singh Patwalia, J.—The instant application has been filed u/s 378(4) Cr.P.C. for grant of leave to appeal against the impugned judgment dated 23.05.2014 passed by learned Judicial Magistrate Ist Class, Amritsar whereby complaint filed by applicant u/s 138 of the Negotiable Instruments Act has been dismissed and respondent has been acquitted of the notice of accusation issued against him.

Brief facts of the case are that a complaint was filed by the applicant-complainant u/s 138 of the Negotiable Instruments Act, 1881 alleging that respondent-accused took a friendly loan of Rs. 2,50,000/- from the complainant for domestic purpose and assured the complainant that the same would be returned to him within three months. The accused in order to discharge her legal debt/liability, issued one cheque bearing No. 067926 dated 17.09.2010 for a sum of Rs. 2,50,000/- drawn on SBI, Rayya Branch, Rayya in favour of complainant, with the assurance that the said cheque would be duly encashed on its presentation to the bank. Complainant presented the said cheque to his banker i.e. Punjab and Sind Bank, SSSS School, Branch Majitha Road, Amritsar, but the same was dishonoured with the remarks "insufficient funds" vide memos dated 15.11.2010 & 24.11.2010. Complainant approached the accused and apprised her regarding dishonour of the cheque but she did not pay any heed to the request of complainant. Thereafter, complainant served the accused with legal notices dated 30.06.2011 and 01.08.2011 through registered A.D. Post, but despite the service of legal notices, accused failed to make the payment to the complainant, therefore, the complaint was filed.

On the basis of preliminary evidence, notice of accusation for commission of an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 was served upon the accused-respondent to which he leaded "not guilty" and claimed trial.

The complainant, in order to prove his case, examined himself as CW 1. Thereafter, statement of the respondent-accused u/s 313 Cr.P.C. was recorded wherein she pleaded complete innocence and false implication.

The trial Court, after appreciating the evidence, acquitted the respondent of the notice of accusation served against her vide impugned judgment dated 23.05.2014. Hence, this application for grant of leave to appeal.

I have heard learned counsel for the applicant and gone through the impugned judgment.

The trial Court, after appreciating the evidence on record, observed as under:-

Learned counsel for accused has argued that the cheque in question has not been signed by accused. Perusal of the file shows that as per cheque return memo Ex. C3, the cheque in question has been dishonoured on the grounds of ''Funds Insufficient'' and not on the ground of ''signatures differ''. This means that the signatures on the cheque in question matched with the specimen signatures of the accused available with the bank. That is why cheque was not dishonoured on the ground of signatures differ. So, once it is clear that signatures of accused on cheque in question matched with the specimen signatures of accused available with the bank it can be presumed that the cheque in question has been signed by the accused. Of course, this presumption can be rebutted by the accused by leading any oral or documentary evidence. But in present case accused has merely taken up a plea that she has not signed the cheque in question. She has not led any oral or documentary evidence to prove the same. Hence this contention of learned counsel for accused is without any merits.

Learned counsel for accused further argued that the cheque in question was not issued by accused in discharge of her legal debt/liability. In fact, accused never issued the cheque in question to complainant. Complainant was on visiting terms with the accused who stole the said cheque from her house and misused the same by filing present false complaint. There is no existing liability of accused towards the complainant and complainant has failed to prove on record that the cheque in question was issued by accused in discharge of her legally recoverable debt/liability. On his part, learned counsel for complainant argued that signature on the cheque in question are of the accused. Therefore, a legal presumption u/s 139 of Negotiable Instruments Act arises against the accused which she has failed to rebut. The legal landscape qua existence of legally enforceable debt and liability and the burden to establish the same, is fairly settled in umpteen number of cases by Hon''ble Apex Court in K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Another, and Goaplast Pvt. Ltd. vs. Shri Chico Ursula D''Souza and Anr. 2003 (3) R.C.R. (Criminal) 131 (SC) Hon''ble Apex Court has observed that section 139 enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption. Presently, to rebut the aforesaid presumption and to prove her version, accused has not adduced an iota of evidence either oral or documentary. Even nothing fruitful to the accused has come out of the cross-examination of complainant which may ruin the case of complainant.

Further, if the contention of accused regarding her cheque being stolen and misused by complainant is assumed to be true then she should have taken any legal action against the complainant for stealing and misusing her cheque. But accused has produced no FIR or DDR lodged by her with the police or any complaint filed in the Court for taking action against the complainant for stealing and misusing her cheque in question. Further, even a better option available with the accused was that she could have intimated her bank to not to make payment as her cheque has been stolen. But as per cheque return memos Ex. C2 & Ex. C3, the cheque in question has been dishonoured on the grounds of "Insufficient Funds" and not "Stop Payment". Therefore, in these circumstances, this version of accused is not worth believing. Accordingly, the first point of contention is determined in favour of complainant and against the accused.

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A bare perusal of Section 138 N.I. Act reveals that the proviso (b) attached to the Section makes it mandatory for the payee or the holder in due course of the cheque, as the case may be, to make the demand for the payment of the cheque amount by giving a notice in writing, to the drawer of the cheque, within 30 days of the receipt of the information by him from the bank regarding the return of the cheque as unpaid. Presently, the cheque dated 17.09.2010 was presented in the bank for the second time for its encashment on 22.11.2010 which was returned dishonoured vide cheque return memo dated 24.11.2010 with the remarks "Funds Insufficient" as alleged in the complaint and as also apparent from the cheque return memo Ex. C3. Thus, it is clear that on 24.11.2010, the factum of dishonour of the cheque came into the knowledge of complainant. The complainant has also nowhere asserted any later date when he came to know about the dishonour of the cheque in question. Therefore, in compliance to proviso (b) of Section 138 of N.I. Act, the complainant was required to serve upon accused a legal notice within a period of 30 days from 24.11.2010. Accordingly, the last date for issuing the legal notice comes out to be 24.12.2010. However, perusal of the legal notice Ex. C4 which was served upon accused by complainant before filing of the present complaint, reveals that the same is dated 30.06.2011 and has been issued on 02.07.2011 vide postal receipt Ex. C5. Thus, there is a delay of more than six months in issuing the legal notice by the complainant. In this manner, the complainant has not complied with proviso (b) of Section 138 of N.I. Act which is mandatory in nature. Thus, it can be safely said that the offence u/s 138 of N.I. Act is not made out against the accused. In this regard, I also draw support from the case law titled as Kamlesh Kumar vs. State of Bihar and another 2014 (1) Apex Court Judgments 001 (S.C.) in which Hon''ble Supreme Court has held that the period of 30 days for issuance of legal notice starts from the date when information was received on visit to the bank by the payee and in case if the notice is not issued within 30 days of receiving information about dishonour of the cheque, the complaint is not maintainable. Thus, in view of the foregoing discussion, the second point of contention is determined in favour of the accused and against the complainant.

The Hon''ble Supreme Court in Muralidhar @ Gidda and Another Vs. State of Karnataka, has held as under:

Lord Russell in AIR 1934 227 (Privy Council) highlighted the approach of the High Court as an appellate court hearing the appeal against acquittal. Lord Russell said, "the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses." The opinion of the Lord Russell has been followed over the years.

As early as in 1952, this Court in Surajpal Singh and Others Vs. The State, while dealing with the powers of the High Court in an appeal against acquittal u/s 417 of the Criminal Procedure Code observed, "the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons."

The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in Tulsiram Kanu Vs. The State, Madan Mohan Singh Vs. State of Uttar Pradesh, , Atley Vs. State of Uttar Pradesh, , Aher Raja Khima Vs. The State of Saurashtra, Balbir Singh Vs. State of Punjab, M.G. Agarwal Vs. State of Maharashtra, Noor Khan Vs. State of Rajasthan, Khedu Mohton and Others Vs. State of Bihar, Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, Lekha Yadav Vs. State of Bihar, Khem Karan and Others Vs. The State of U.P. and Another, Bishan Singh, Gurdial Singh, Hardial Singh, Surjit Singh, Harbans Singh and Hazur Singh Vs. The State of Punjab, Umedbhai Jadavbhai Vs. The State of Gujarat, K. Gopal Reddy Vs. State of Andhra Pradesh, Tota Singh and Another Vs. State of Punjab, Ram Kumar Vs. State of Haryana, Madan Lal Vs. State of Jammu & Kashmir, Sambasivan and Others Vs. State of Kerala, Bhagwan Singh and Others Vs. State of Madhya Pradesh, Harijana Thirupala and Others Vs. Public Prosecutor, High Court of A.P., Hyderabad, C. Antony Vs. K.G. Raghavan Nair, State of Karnataka Vs. K. Gopalakrishna, State of Goa Vs. Sanjay Thakran and Another, and Chandrappa and Others Vs. State of Karnataka, It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

Learned counsel for the applicant has failed to show any error in law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.

As such, application for leave to appeal is dismissed being devoid of merit.