Krishan Kumar Kotvi vs State Of H.P. & Another

Sureshwar Thakur, J

The insant criminal revision petition stands directed by the accused/petitioner herein, against, the concurrently recorded verdicts, by both the learned Courts below, upon, Case No.10-D of 10/06, whereunder, the petitioner herein stood convicted, and, sentenced, for, his committing an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act).

Briefly, the case set up by the complainant is that the accused is known to him and he is carrying on the business in main bazaar Rohru under the name and style of "Krishna Jewellers'. In September, 2005, the accused approached him for financial help and requested to give Rs.4,50,000/- for running the business and upon good faith, the said amount was given to him, which was to be paid by 31.08.2006. He also issued the cheque bearing No.383111 of 31. 08.2006 for the aforesaid amount. After the expiry of the period, when the complainant asked the accused to make the payment, the matter was delayed on one pretext or other. Thereafter, the said cheque was presented for its encashment, however, it was received back dishonoured due to reason that the payment had been stopped by the accused. Thereafter, a legal notice dated 20.09.2006 was also sent to accused through registered post as well as UPC, however, in collusion with the postal authorities, he did not receive the same. Till date, any payment has not been made, as such, it is prayed that the accused be punished in accordance with law.

The learned trial Court, on, finding sufficient material on record, to proceed against the accused, hence, issued notice to the accused. On his appearance before the learned trial Court, notice of accusation for his committing an offence punishable under Section 138 of the Negotiable Instruments Act, stood put to him. In proof of the case, the complainant examined two witnesses. On conclusion of recording of the complainant's evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded by the learned trial Court, wherein he claimed innocence and pleaded false implication. However, he has examined two witnesses in his defence.

On an appraisal of the evidence on record, the learned trial Court, returned findings of conviction against the accused/petitioner herein.

The petitioner/accused is aggrieved by the judgment of conviction recorded against him, by both the learned courts below. The learned counsel appearing for the accused/respondent herein, has, concertedly and vigorously contended qua the findings of conviction recorded by the learned courts below, standing, not based on a proper appreciation, by them, of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation by them, of the material on record. Hence, he contends qua the findings of conviction warranting reversal by this Court in the exercise of its revisional jurisdiction, and, theirs standing replaced by findings of acquittal.

On the other hand, the learned counsel appearing for the complainant/respondent herein, has with considerable force and vigour, contended qua the findings of conviction recorded by the learned courts below, rather standing based on a mature and balanced appreciation by them, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication.

This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record.

The dishonoured negotiable instrument, borne in Ex.CW1/A, embodies a sum of Rs.4,50,000/-. Since, the revisionist, does not contest, the occurrence of his signatures thereon, nor when he contests the authorship of all the scribings borne therein, (i) thereupon, the complainant, the holder of the afore cheque, hence, embodying the afore amount, is, to be rather construed to be receiving the afore dishonoured negotiable instrument, from, the revisionist, (ii) for hence, therethrough, rather ensuring, the, apt discharging(s) in whole or in part any debt or any other liability, and, ensuing from, a, commercial transaction which occurred inter se the complainant, and, the revisionist. However, the afore presumption, which stands statutorily embodied, in, the provisions borne in Section 139 of the Act, (iii) apparently, given the coinage "unless contrarily proved", also occurring therein, renders the afore presumption, to be rather a rebuttable presumption. The provisions borne in Section 139 of the Act, stand extracted hereinafter:

"139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."

For determining, whether the revisionist, hence, shattering the afore presumption, an allusion to the testimony of RW-2, is, important, wherein, in his examination-in-chief, he echoes qua one Bhagwan Dass, the father of the complainant, lodging FIR No.116/2007 of 25.07.2007, wherein, (a) recitals occur, vis-a-vis, hereat dishonoured negotiable instrument, being issued by the revisionist, vis-a-vis, the complainant, (b) and, its issuance being towards liquidation, of, sale consideration, vis-a-vis, an apposite registered deed of conveyance executed inter se one Bhagwan Dass, and, the wife of the revisionist, (c) and, his making further unfoldments therein qua upon his investigating the matter, his discovering, that the entire sale consideration, being liquidated by the revisionist, vis-a-vis, the afore Bhawant Dass, (d) and, in contemporaneity with the execution of the apt registered deed of conveyance. A further reading of the last portion of the testification of RW-2, borne in his cross-examination also reveals, qua an affirmative suggestion being put to him, by the counsel for the complainant, qua the FIR being lodged, by Bhagwan Dass, and, the complainant not being the informant, wherefrom, dehors the FIR being a photo copy of the original, an inference is rearable qua (a) with, the, cheque number recited therein rather holding similarity, vis-a-vis, the cheque number borne, in, the extant dishonoured negotiable instrument, (b) thereupon, the contradictory therefrom averments, borne in the complaint, hence, visibly lose their apt efficacy. Reinforced momentum to all the afore inferences, is, garnered by factum qua neither the afore Bhagwan Dass nor the complainant adducing any evidence qua theirs instituting a civil suit, for, ensuring, the, rescinding, of, the registered deed of conveyance executed, inter se one Bhagwan Dass, and, the wife of the revisionist.

Be that as it may, even if the dishonoured negotiable instrument, is, issued in the name of complainant, yet, with the complainant being the son of Bhagwan Dass, (i) and, reiteratedly when a reference stands borne therein, qua, similar hereat cheque number, (ii) also with a reference being borne therein qua it being handedover to the complainant, the, son of the informant, (iii) apparently when the afore cast averment, in the FIR, remains unbelied, nor is contested by one Bhagwan Dass, (iv) thereupon, the defence reared by the revisionist qua the dishonoured negotiable instrument being purportedly issued towards, apt liquidation, vis-a-vis, the outstanding sale consideration qua the registered deed of conveyance executed inter se one Bhagwan Dass, and, the wife of the accused/revisionist, rather being cogently proven, (v) conspicuously given, even if it stood dishonoured, the, prime factum qua its issuance being towards liquidation qua any purported short fall, in the apposite sale consideration, (vi) whereas, the sale consideration appertaining to the apposite registered deed of conveyance, being effaciously proven to be liquidated, by the revisionist, to one Bhagwan Dass, (vii) thereupon, the revisionist was meritworthily hence bestowed, with a right to direct his bankers, to, upon, presenter of the cheque, hence, stop payment, vis-a-vis, its presentation. Also, the further corollary thereof, is, qua the revisionist hence shattering the afore statutory presumption attracted, vis-a-vis, the complainant, the holder, of Ex.CW1/A.

For the reasons which have been recorded hereinabove, this Court holds that the learned courts below have not appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned courts below rather suffers from a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record.

Consequently, the instant revision is allowed and the judgments impugned before this Court are quashed and set aside. In sequel, the accused/revisionist is acquitted of the offence punishable under Section 138 of the Act. All pending applications also stand disposed of. Records be sent back forthwith.