Lekh Raj vs Rakesh Puri

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Bipin Chander Negi, J

Cr. Revision No.364/2017

The instant petition has been filed by the petitioner/accused against the judgment dated 02.12.2017 passed by learned Sessions Judge, Una, District Una, Himachal Pradesh, in Criminal Appeal No.4/17, whereby the appeal filed by the petitioner/accused against the judgment of conviction and order of sentence dated 13.12.2016, passed by learned Additional Chief Judicial Magistrate, Una, H.P., has been dismissed and the impugned judgment of conviction and order of sentence passed by the learned trial Court, are upheld.

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

There are two cheques in the case at hand, both dated 15.11.2007. Admittedly during their validity, the cheques were presented before the concerned Bank. The same were returned vide Bank Memo dated 27.02.2008,. The reason stated in the returned memo is “account closed on 1.1.2004”.

In pursuance to the aforesaid return, legal notice was issued to the petitioner on 24.03.2008. The same was deemed to have been received on 27.03.2008, as the petitioner had refused the acceptance of the same. Since no payment was made post the period of refusal on 11.04.2008, therefore, the present respondent was constrained to file a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act on on 05.08.2008.

From the aforesaid facts and attending circumstances, it is clearly evident that the provisions of Section 138 read with Section 142 of the Negotiable Instruments Act stand complied, in the case at hand. Since there is no infraction of law in this regard, therefore, there arises no occasion to interfere in a revisional jurisdiction on account of non-compliance of the provisions of law, i.e., Section 138 read with Section 142 of the Negotiable Instruments Act.

From a perusal of record, it is evident that the present petitioner/complainant has raised the defence of non-existence of any legally enforceable liability, in the case at hand. The accused/petitioner has not denied his signatures on the cheques, in the case at hand.

Neither the petitioner/accused denied mention of amount in the cheques in question.

From a perusal of the record, especially Ex.C-8, it is evident that the same is in the nature of a receipt. A perusal of the same makes it evident that the complainant/respondent had given Rs.3,50,000/- as an advance to the petitioner/accused for supply of Khair Wood. Admittedly, no Khair Wood could be supplied on account of the ban imposed by the Hon’ble High Court. In the receipt, Ex.C-8, Khair Wood, receiving of Rs.3,50,000/- has been admitted by the present petitioner/accused. It was in lieu of this advance received from the complainant/ respondent that two cheques were issued by the petitioner/accused to discharge the liability of Rs.3,50,000/-.

The defence raised by the petitioner/accused has to meet the test of preponderance of probability. Both the Courts have rejected the defence, so raised by the petitioner/accused.

9 Normally a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding [(2012) 9 SCC 460 case titled as Amit Kappor Vs. Ramesh Chander]. Learned counsel for the petitioner/accused has failed to point out any perversity in the findings recorded by both the Courts below qua rejection of defence raised by the petitioner/accused.

Both the learned Courts below have correctly appreciated the oral as well as documentary evidence led by the parties and there is no need to interfere with the well-reasoned judgments passed by both the learned Courts below.

In view of the aforesaid, the instant petition is dismissed.

Cr. MP No.3621/2023

For the reasons stated in the application, the same is allowed.

The amount deposited by the non-applicant/petitioner, i.e., Rs.40,000/- , be released to the applicant/respondent alongwith up-to-date- interest in the bank account, details whereof, have been given in Para-3 of the application. Application stands disposed of.