Sudesh Kumari vs Susheel Kumar

Sandeep Sharma, J

Instant criminal revision petition filed under Section 397 read with Section 401 Cr.PC, lays challenge to judgment dated 17.4.2018, passed by the learned Additional Sessions Judge, Ghumarwin, District BIlaspur, H.P., in Criminal Appeal No. 66-10 of 2016, affirming the judgment of conviction and order of sentence dated 12.7.2016, , passed by the learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, H.P. in criminal Case No. 11-3 of 2013, 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. 7,20,000/- to the complainant.

Precisely, the facts of the case, as emerge from the record are that respondent/complainant lodged complaint under Section 138 of the Act before the learned trial court, stating therein that accused had purchased micro mini bus bearing registration No. HP-69-1030 from him for total consideration of Rs. 12,27,000/ - and with a view to discharge her part liability issued cheque amounting to Rs. 6,00,000/-, but fact remains that aforesaid cheque on its presentation to the bank concerned, was dishonoured. Since accused failed to make the payment good within the stipulated period despite her having received legal notice, 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 12.7.2016, 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 first appellate Court, but same was dismissed vide judgment dated 17.4.2018. 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 13.7.2018, this Court suspended the substantive sentence imposed by the court below subject to petitioner’s depositing 50% of the compensation amount within four weeks, however, fact remains that aforesaid order was never complied with. Though, repeatedly, this Court adjourned the matter on the requests made by the learned counsel for the petitioner enabling the petitioner to deposit he balance amount, but in vain.

Today, during the proceedings of the case, learned counsel for the petitioner states that petitioner is not coming forward to impart the instructions and as such, 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, this Court is not persuaded to agree with 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 aspects of the matter very meticulously and there is no scope left for this Court to interfere.

Interestingly, in the case at hand, there is no denial, if any, by the petitioner-accused with regard to issuance of cheque as well as her signature thereupon. She has nowhere disputed factum with regard to her having purchased micro mini bus for a total consideration of Rs. 12,27,000/-, rather in her statement recorded under Section 313 Cr.PC, she simply stated that she had made the entire payment, partly in cash and partly through cheque. Since she has specifically failed to refute the factum with regard to issuance of cheque as well as signature thereupon, presumption as available under Sections 118 and 139 of the Act comes into play, which clearly provides that there shall be a presumption available in favour of the holder of the cheque that same was issued in discharge of the lawful liability. No doubt, aforesaid presumption is rebuttable, but for that purpose, accused is/was under obligation to raise probable defence. Probable defence could be raised by the accused by referring to the documents adduced on record by the complainant or by leading some cogent and convincing evidence. However, in the case at hand, accused, despite ample opportunities, failed to raise the probable defence.

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.”

If the entire evidence led on record by the complainant is read in its entirety, it clearly suggests that he successfully proved all the ingredients of Section 138 of the Act. With a view to rebut the presumption, accused tried to set up a case that no cheque was issued for discharge of liability, but such defence of him never came to be probablized. In the case at hand, transaction of sale of vehicle and issuance of cheque in discharge of the lawful liability has been admitted by the petitioner-accused, however, she raised a defence that after the cheque in question was issued, the entire outstanding amount of sale consideration was made by her in cash to the complainant, but she was unable to explain that what steps were taken by her to take the cheque back from the complainant. She further set up a case that amount of Rs. 9,27,000/- was paid by her to the complainant in cash on the date agreement of sale was entered between the parties, but she was unable to place on record receipt, if any, of payment made in cash. Though with a view to prove her case, accused examined DW2 Harbans Lal, father of the accused, who deposed that he had given Rs. 9.00 lac to the accused at Ghumarwin, but aforesaid statement of this witness is of no relevance/help as far as case of the petitioner-accused is concerned. He nowhere stated that payment of Rs. 9,27,000/- was made by the accused in his presence. Record further reveals that with a view to prove factum with regard to the payment, accused also placed on record affidavit of sale Ext.CW4/X, wherein it stands recorded that full and final payment towards the sale consideration has been received by the complainant. Bare perusal of Ext.CW4/X suggests that it contains a recital that the full and final payment had been received by the complainant through cheques, meaning thereby, payment, if any, was made through cheques. It is the case of the complainant that cheque issued by the accused towards discharge of lawful liability was dishnonoured on account of insufficient funds. Since despite having received legal notice, accused failed to make the payment good within the stipulated time, no illegality can be said to have been committed by the complainant by instituting the proceedings under Section 138 of the Act.

Complainant Sunil Kumar while deposing as CW4 categorically stated that accused purchased mini micro mini bus from him on 13.7.2012 for consideration of Rs. 12,27,000/-. He further deposed that accused had issued six cheques in his favour, out of which, four cheques were honoured and two were dishonoured. The affidavit regarding the sale is Ext.CW4/X and affidavit of payment is Ext.CW4/Y. He deposed that cheque bearing No. 575694 was of Rs. 327000/-, which was dishonoured and accused was convicted in that case. He deposed that second cheque is Ext.CW1/B, was presented at HP State Cooperative Ban Dadhol, which was dishonoured vide memo Ext.CW-1/D. He deposed that he had issued legal notice to the accused through advocate, postal receipt whereof is Ext.CW1/F. Though notice was received by the accused on 28.1.2013 as is evident from the acknowledgment card Ext.CW1/G, but she neither replied to the same nor paid the money. CW5 Sh. S.B. Nalin, Advocate, deposed that on 13.7.2012, he prepared the affidavit regarding route permit transfer and agreement regarding payment Ext.CW4/Y. Cross-examination conducted upon these witnesses, if perused in its entirety, clearly suggests that accused was unable to extract something contrary to what they stated in their examination -in- chief.

If the entire evidence led on record by the complainant is read in its entirety, no illegality and infirmity can be said to have been committed by the courts below while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Act. Complainant successfully proved on record that before instituting proceedings under Section 138 of the Act, it had served legal notice upon the accused, thereby calling upon her to make the payment good. Neither she replied to the legal notice, nor paid the money. Similarly factum with regard to signatures and issuance of cheque by the accused towards discharge of lawful liability stands duly established on record.

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.