Full Judgment
CRM-A-878-MA o”
1. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRM-A-878-MA of 2011 Date of decision: July 17, 2013.
Tarlochan Singh ....Petitioner Versus Ved Parkash ....Respondent CORAM: HON'BLE Mr.JUSTICE PARAMJEET SINGH 1 Whether Reporters of the local papers may be allowed to see the judgment?.
2) To be referred to the Reporters or not?.
3) Whether the judgment should be reported in the Digest?.
Present: Mr.Ramesh Sharma, Advocate, for the petitioner.
Mr.Sachin Jain, Advocate, for the respondent.
PARAMJEET SINGH, J.
The instant application has been filed under Section 378 (4) of the Code of Criminal Procedure for grant of leave to appeal against the impugned judgment dated 10.09.2011 by virtue of which Sub Divisional Judicial Magistrate, Nakodar has acquitted the respondent-accused in respect of a case under Section 138 of the Negotiable Instruments Act (in short “NI”.
Act).Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh CRM-A-878-MA o”
2. Brief facts of the case as mentioned in the impugned judgment are as under: “......that the accused borrowed a sum of Rs.2,50,000/- from the complainant.
In consideration of that amount and in order to discharge his legal liabilities, accused issued cheque bearing No.448397 dated 01.12.2008 for Rs.2,50,000/- to complainant from his account no.3177 drawn at Indian Bank, Branch Udhowal with assurance that the same shall be encashed on its presentation.
When the aforesaid cheque was presented by the complainant, the same was returned to him unpaid with the remarks “Account Closed”.
as per memo dated 1.12.2008.
Thereafter, the complainant served the accused with notice of demand dated 10.01.2009 to the accused.
He received the said notice but has failed to clear the cheque amount within the stipulated period, which necessitated the filing of the present complaint.”
On the preliminary evidence, trial Court summoned the accused- respondent.
Thereafter, accused was served with notice of accusation for offence punishable under Section 138 of N.I, Act, to which he pleaded not guilty and claimed trial.
In order to prove the guilt of accused, complainant-Tarlochan Singh himself stepped into the witness-box as CW 1 and closed his evidence by making separate statement.
Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh CRM-A-878-MA o”
3. Thereafter, statement of accused-respondent under Section 313 Cr.P.C.was recorded.
All incriminating facts and circumstances were put to the accused wherein he pleaded complete innocence and false implication.
The learned trial Court vide impugned judgment dated 10.09.2011, after appreciating the evidene, acquitted the accused-respondent of the charge framed against him.
Hence, this application for grant of leave to appeal.
I have heard learned counsel for the petitioner and gone through the impugned judgment.
The learned trial Court, after appreciating the evidence on record, observed as under: “ The counsel for accused has cross-examined complainant at considerable length but nothing material could be extracted from his cross-examination, which could be of any help to the accused to disprove execution of cheque by accused.
Rather the perusal of cross- examination provides that accused himself has admitted his signatures over the cheque and he has not denied that the cheque in question do not belong to him.
In these circumstances, when the signatures upon cheque have been admitted by the accused, therefore, the initial burden lying upon complainant stands discharged and it is not for the accused to establish on record that the cheque was not issued for legally recoverable debt or same has been misused by the complainant because it is for the accused to dispel the initial presumption in favour of the complainant.
This opinion of Court is also fortified with judgment of Full Bench of Hon'ble Apex Court reported as (2010) 11 Supreme Court Cases 441 passed in case of Rangappa Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh CRM-A-878-MA o”
4. versus Sr.Mohan wherein Hon'ble High Court has observed that presumption under Section 139 of N.I.Act regarding legally recoverable debt, is to be drawn on proof of execution of cheque.
To rebut presumption enshrined under law, the accused has rested his claim mainly on his own deposition as DW 1 and receipt (Ex.D-1).The perusal of receipt (Ex.D-1) shows that vide this receipt accused has paid a sum of Rs.500/- to Guru Nanak Finance Company (registered) Mehatpur, which is sufficient to presume that contention of accused that he had taken a loan from above finance company, has substance.
The above observation of court is also supported with deposition of accused who has stepped into witness-box as DW 1 and has deposed on oath in this regard.
Although, there is no document on record to ascertain that entire loan has been paid by accused and Sukha did not return cheque to accused but one fact stands proved on record that there was transaction between accused and Sukha who is Managing Partner of said finance company.
No doubt, counsel for complainant objected to the execution of receipt (Ex.D-1) but the aforesaid objection is not sustainable because complainant has not denied taking of loan by accused from Finance Company because there is no suggestion to accused, in his cross-examination, to the above extent which means that complainant do not dispute the above version of witness.
Considering the factum of taking of loan by accused from Finance Company and as there is general tendency of the financiers that they obtain blank signed cheques from borroweRs.therefore, it is quite probable that dispute cheque was also taken by Sukha from accused and Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh CRM-A-878-MA o”
5. possibility cannot be ruled out that complainant has used the said cheque in the present case.
This observation of court is fortified with the fact that there is no document on record to show that amount in question was given by complainant to accused.
Although, complainant claims that he handed over sum of Rs.2,50,000/- to accused after withdrawing the same from bank on 23.10.2008 but this contention of complainant is not sustainable.
Neither date of advancement of amount has been mentioned in complaint not in notice of demand.
In the opinion of court, if the complainant was to advance a sum of Rs.2,50,000/- to accused after withdrawing the same from the bank, he should have handed over cheque of said amount to accused which could have done by a prudent man not only to justify his transaction but also to have some evidence in this regard.
Admittedly complainant is assessed to income- tax but he has admitted in his cross-examination that he has not shown the alleged amount in his income tax returns and name of accused does not figure in Sundry list of debt ORS.which lists be filed along with said returns.
The accused is only to create doubt about existence of legally enforceable debt or liability on the basis of preponderance of probabilities.
He can also rely upon material submitted by the complainant in order to raise such a defence and it is conceivable that income cases the accused may not need to adduce evidence of his own.
The relevant extract of above judgment is reproduced as under: “28.
The reveRs.onus clauses usually impose an evidentiary burden and not a persuasive burden.
Keeping this in view, 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 that of “preponderance of Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh CRM-A-878-MA o”
6. probabilities”.Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail.
Keeping in view the aforesaid law laid down by Hon'ble Supreme Court and facts and circumstances of present case, discussed in preceding paras of this judgment, this Court is of the opinion that accused has successfully displaced the presumption under Section 139 of N.I.Act and hence the said presumption has cease to operate.
Hence, this Court has no other option except to hold that complainant has failed to prove on record that accused issued disputed cheque in discharge of legal liability and it is possible that complainant has misused the disputed cheque.”
Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v.
State of Gujarat, 2002(1) RCR (Criminal) 748', held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
This view has been reiterated in State of Goa v.
Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v.
State of Karnataka, (2007) 4 SCC 415'.
A Division Bench of this Court in 'State of Punjab v.
Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon’ble Supreme Court in Ashok Kumar v.
State of Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh CRM-A-878-MA o”
7. Rajasthan, 1991(1) SCC 166.which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perveRs.or based on a misreading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.”
In 'Mrinal Das & others v.
The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameteRs.in which interference can be made in a judgment of acquittal, by observing as under: “ An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”., for doing so.
If the order is “clearly unreasonable”., it is a compelling reason for interference.
When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reveRs.the decision of the trial Court depending on the materials placed.”
Similarly, in the case of 'State of Rajasthan v.
Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon’ble Supreme Court has observed as under:- “7.
A judgment of acquittal has the obvious consequence of granting freedom to the accused.
This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh CRM-A-878-MA o”
8. competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.”
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence.
A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons.
An appeal against acquittal has always been differentiated from a normal appeal against conviction.
Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for.”
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:- “10.
There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other.
The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with.
Thus, this fine distinction has to be kept in mind by the Court Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh CRM-A-878-MA o”
9. while exercising its appellate jurisdiction.
The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience.”
Admittedly, the petitioner is an income-tax assessee.
He has admitted in his cross-examination that neither he has shown the alleged amount in his income-tax returns not name of respondent-accused figures in the sundry list of debt ORS.The trial Court has doubted the transaction as assessee is required to mention regarding his transaction in his income-tax returns.
The trial Court has recorded a categoric finding that the respondent has been able to dispel the presumption under Section 139 of the N.I.Act.
Learned counsel for the petitioner has failed to show any error of facts or law on the basis of which interference can be made by this Court.
The petitioner has not been able to prove the transaction in question, rather defence of the respondent-accused is probable.
Hence, in view of the settled law as referred above, this application for leave to appeal is dismissed.
[ Paramjeet Singh ].July 17, 2013 Judge parveen kumar Kumar Parveen 2013.08.23 15:57 I attest to the accuracy and integrity of this document High Court, Chandigarh