Jiya LalVs Surat Singh

Sandeep Sharma, J

Instant criminal revision petition filed under Section 397 read with Section 401 Cr.PC, lays challenge to judgment dated 26.05.2022, passed by the learned Additional Sessions Judge-cum-Special Judge (CBI), Shimla camp at Rohru, H.P., in Criminal Appeal No. 47-R/10 of 2021 titled Jiya Lal Vs. Surat Singh, affirming the judgment of conviction and order of sentence dated 01.04.2021/12.07.2021, passed by the learned Additional Chief Judicial Magistrate, Court No. I, Rohru, H.P. in criminal Case RBT No. 518/3 of 2019 titled as Suraj Singh Vs. Jiya Lal, whereby the learned trial Court while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and sentenced him to undergo simple imprisonment for a period of one year and pay compensation to the tune of Rs. 81,000/- to the respondent-complainant.

Precisely, the facts of the case, as emerge from the record are that respondent/complainant instituted a complaint under Section 138 of the Act before the learned trial court, alleging therein that in the year 2018 accused had got apple grading and packing done from the unit of complainant and with a view to discharge his aforesaid liability had issued cheque bearing No. 006949 dated 28.08.2018 amounting to Rs. 60,000/-, but aforesaid cheque on its presentation to the bank concerned, was dishonoured on account of insufficient funds vide memo dated 15.11.2019 Ext.CW1/C. Since accused failed to make the payment good within the stipulated period despite his having received legal notice dated 15.11.2019 Ext.CW1/D, complainant had no option, but to initiate proceedings under Section 138 of the Act in the competent court of law.

Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 01.04.2021/12.07.2021, held the petitioner-accused guilty of having committed offence punishable under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given herein above.

Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, petitioner -accused preferred an appeal before the learned Additional Sessions Judge-cum-Special Judge (CBI), Shimla, District Shimla, H.P., but same was dismissed vide judgment dated 26.05.2022. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein to set-aside the judgment of conviction and order of sentence recorded by the court below.

Vide order dated 14.07.2022, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing the compensation amount within a period of six weeks and furnishing personal bonds in the sum of Rs. 25,000/-, however, fact remains that aforesaid order was never complied with.

Today, during the proceedings of the case, learned counsel for the petitioner-accused submitted that since petitioner-accused is not coming forward to deposit the amount, this Court may proceed to decide the case on its own merits.

Having heard learned counsel for the parties and perused material available on record vis-a-vis reasoning assigned in the impugned judgment passed by learned Additional Sessions Judge, whereby judgment of conviction and order of sentence recorded by the trial court came to be upheld, this court is not persuaded to agree with Mr. Vishwinder Singh, learned counsel for the petitioner, that courts below have failed to appreciate the evidence in its right perspective, rather this court finds that both the courts below have dealt with each and every aspect of the matter meticulously and there is no scope left for this Court to interfere. Evidence led on record by the parties, especially statement of accused under Section 313 Cr.P.C. clearly reveals that there is no denial, if any, on the part of petitioner-accused with regard to issuance of cheque as well as his signature thereupon.

Though, accused set up a case that he had issued blank cheque, but same has been misused. However, to probablize the aforesaid defence, no cogent and convincing evidence ever came to be led on record. In the instant case, complainant with a view to prove that accused had issued cheque amounting to Rs. 60,000/- Ext. CW1/B towards discharge of his lawful liability examined himself as CW1, wherein he while tendering his evidence by way of affidavit Ext.CW1/A categorically reiterated the contents of complaint, which has been otherwise taken note hereinabove, in his cross-examination he specifically denied that there is no grading unit in his name, rather he categorically stated that accused got his apple crop graded from his grading unit and in that regard he had issued cheque amounting to Rs. 60,000/-. In the statement of accused under Section 313 Cr.P.C, he never denied factum of his having got the apple crop graded and packed from the unit of the complainant in the year 2018. He also not disputed factum with regard to issuance of cheque Ext. CW1/B as well as signature thereupon, rather he stated that cheque issued by him has been misused. Once he admitted his having issued cheque, there is presumption in the favour of holder of the cheque that the same was issued towards discharge of lawful liability. No doubt, aforesaid presumption can be rebutted by the person responsible for issuing cheque, but for that purpose he is required to lead positive evidence, which can be either led referring to the documents led on record by the complainant or otherwise. However, in the instant case, despite opportunity, accused failed to lead evidence.

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 offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:

“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 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.

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.

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 an offence, hence punishable. But even in such cases, the 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 sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy.”

Careful perusal of evidence led on record clearly reveals that cheque Ext. CW1/B was issued by the accused in favour of the complainant to discharge of lawful liability. Since, cheque was dishonoured vide memo Ext.CW1/C on account of insufficient funds and despite having received legal notice Ext. CW1/D, receipt whereof stands duly established with placing of postal receipt Ext.CW1/E, accused failed to make the payment good within stipulated time, complainant had no option, but to initiate proceedings under Section 138 of the Act. In the case at hand, all the ingredients of Section 138 of the Act stand duly complied with at the behest of respondent/complainant, whereas no evidence to the contrary has been led on record by the complainant, as such, no illegality can be said to have committed by the learned court below, while passing impugned order.

Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, 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:-

“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.”

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.

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 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.

Consequently, in view of the discussion made herein above 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.

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. Interim direction, if any, stands vacated. Pending applications, if any, also stand disposed of.