Judgment:
1. The petitioner/accused, Surinder Singh, having been convicted and sentenced for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act'), by the JMIC Ludhiana, vide judgment dated 31.5.2004 and which conviction and sentence was maintained in the appeal by the Additional Sessions Judge, Ludhiana, vide judgment dated 25.4.2005, has preferred the present revision against that conviction and sentence.
2. The facts, in brief, are that Bakshish Singh- respondent/complainant filed a complaint against the accused in which he contended that the accused borrowed Rs.1 lakh from him and for discharging the debt, he issued cheque No.863751 dated 21.11.2001 for `1 lakh drawn on State Bank of Patiala with the assurance that the same will be Crl. Rev. No. 962 of 2005 encashed on presentment. Believing that assurance of the accused, he presented the cheque for collection through his banker Bank of Baroda, but was dishonored by the banker of the accused, vide memo dated 22.11.2001 on account of insufficient funds in his account. He brought the factum of dishonoring of the cheque to the notice of the accused, who instead of making the payment started proclaiming that he would not make any such payment to him. He served legal notice dated 27.11.2001 upon the accused calling upon him to make the payment of the amount of the cheque within 15 days, but he failed to do so. In the preliminary evidence, the complainant examined himself as CW1 and on the basis of that evidence the JMIC found sufficient grounds for proceeding against the accused under Section 138 of the Act. He was summoned accordingly. On his appearance before the Court, notice of the offence was served upon him, to which he pleaded not guilty and claimed trial. After the death of the complainant, an application was filed by his son Pargat Singh for substituting his name in the place of the complainant on the ground that he was his legal heir. He was permitted to pursue the complaint by the JMIC, vide order dated 5.7.2002.
3. Thereafter, he entered the witness box as PW1. After the evidence was closed on behalf of the complainant, the accused was examined by the trial Court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the evidence of the complainant were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence. He was called upon to enter on his defence and he examined Sukhdev Singh DW1 in his defence evidence. After going through that evidence and hearing learned counsel Crl. Rev. No. 962 of 2005 for both the sides, learned trial Court convicted the accused and sentenced him to undergo imprisonment for a period of one year and to pay a fine of `2000/- and in default thereof, to undergo imprisonment for a period of one month. Against that conviction and sentence he preferred an appeal which was dismissed by the Additional Sessions Judge as aforesaid. I have heard learned counsel for both the sides.
4. Learned counsel for the petitioner/accused challenged the finding of conviction and sentence of the accused recorded by the trial Court and upheld by the appellate Court. She submitted that no evidence was produced by the complainant to prove that he was possessed of funds of `1 lakh, which is said to have been advanced to the accused. In the absence of that evidence, it could not have held that he was possessed of sufficient funds to advance that much amount to the accused and that itself is a ground for his acquittal. She further submitted that the date on which the alleged loan was so advanced to the accused is neither mentioned in the complaint nor any evidence was led to that effect and as such it cannot be said that the cheque in dispute was issued in discharge of legally enforceable debt.
She has supported those submissions by relying upon Krishna Janardhan Bhat v. Dattatraya G. Hegde, 2008(1) R.C.R (Criminal) 695. She further submitted that no reliance can be placed upon the statement of Pargat Singh PW1 as his name was not mentioned in the complaint nor it was stated by the complainant during his statement recorded in the preliminary evidence that the loan was advanced or the cheque was issued in the presence of that witness.
If the statement of that witness is ignored there remains nothing on the record to prove the contentions of the complainant. In the last, she Crl. Rev. No. 962 of 2005 submitted that it is very much apparent from the cheque in question itself, which has been signed by the accused in Gurmukhi Script, that he is an illiterate person and evidence was produced by him to the effect that blank cheque was issued to the complainant as a security for the repayment of loan of `50,000/- obtained by him and which was duly returned. The blank cheque having been retained by the complainant has been misused.
Learned counsel for the complainant tried to controvert these submissions of learned counsel for the accused, by referring to the findings recorded by the trial Court and the appellate Court.
5. It is a fact that the complainant neither mentioned in the complaint nor any evidence was produced to the effect that he was possessed of funds of `1 lakh, which is said to have been advanced to the accused. No doubt, it was held in Krishna Janardhan Bhat's case (Supra) that in the absence of any proof by the complainant that he was in a position to advance that much of the money as mentioned in the cheque, the version of the accused that the cheque came into hands of the complainant during the business transaction and the complainant failed to pay the amount and misused it becomes probable.
The facts of this case are different and as such ratio of that judgment cannot be applied to the facts of the present case. According to the complainant, there was only single transaction of advancing of loan and, according to him, the loan of `1 lakh was advanced. It is not the case of the accused that no such loan was advanced, as according to him loan of `50,000/- was advanced and blank cheque was issued as a security for the repayment of that loan.
Thus according to him, the complainant was in a position to advance `50,000/-. If he was in a position to advance that Crl. Rev. No. 962 of 2005 amount, it does not lie in the mouth of the accused to allege that he was not possessed of sufficient funds so as to advance the sum of `1 lakh, though no such evidence was produced on record that he was possessed of those funds. The complainant could not be examined in the Court, after the summoning of the accused on account of his death. Pargat Singh entered the witness box as PW1 and proved on record his affidavit Ex.PW1.
In that affidavit he deposed about the facts which have been detailed in the complaint. No doubt his name is not mentioned in the complaint, but it was never suggested by the accused to him during his cross-examination that he was not present at the time of the advancement of the said loan or that the cheque was not issued by him in his presence.
In these circumstances, when his presence was not challenged, no weight is to be given to the submissions made by the counsel for the accused that his testimony be ignored on the ground that his name does not figure in the complaint or in the preliminary evidence. It was suggested to this witness during his cross-examination that the blank cheque was issued and the same was denied by him. Even if the contention of the counsel for the accused is accepted that the accused is an illiterate person even then it cannot be presumed, in view of the cogent and convincing evidence produced by the complainant, that he had issued a blank cheque merely on account of the fact that the columns thereof are filled up in the English language. If the accused was illiterate he could not have filled those coloums either in English or in any other language. He was supposed to get the same filled from some other person.
In view of the contrary stand taken up by the accused, it cannot be held that he had issued a blank cheque as security for the return of the sum of `50,000/- advanced Crl. Rev. No. 962 of 2005 to him as loan by the complainant. He never suggested to Pargat Singh during his cross-examination that he had taken a loan of `50,000/- from the complainant. Rather he suggested to him that a loan of `10,000/- was obtained and the same was returned and that suggestion was duly denied by him. In order to make his stand probable the accused examined Sukhdev Singh DW1, whose examination was recorded by means of affidavit Ex.DW1 in which he reiterated the stand so taken by the accused. That affidavit of the defence evidence cannot be taken into consideration. Section 145 of the Act permits the complainant to give evidence by means of affidavits whereas no such concession has been given to the accused.
It was so held by Hon'ble Supreme Court in M/s Mandvi Cor-op Bank v. Nimesh B. Jhakore 2010(1) RCR (Criminal) 681. Therefore this defence evidence so produced by the accused by means of affidavit cannot be looked into.
6. A presumption is to be drawn under Section 118 of the Act that the cheque so proved on the record by the complainant was for consideration and the second presumption is to be drawn under Section 139 of the Act that the same was issued in discharge of pre-existing debt. The question; whether a presumption can also be drawn that the same was issued in discharge of the legally enforceable debt came up for consideration before Hon'ble Supreme Court in Rangappa v. Mohan 2010(3) RCR (Criminal) 164. It was held therein that a presumption can be drawn under Section 139 of the Act that the cheque was issued in discharge of legally enforceable debt. To that extent observations made in Krishna Janardhan Bhat's case (Supra) were held to be not correct. The accused has not been Crl. Rev. No. 962 of 2005 able to produce any evidence nor has been able to elicit any such fact during the cross-examination of Pargat Singh PW1 for rebutting the said presumptions. Correct findings were recorded by the trial Court and the appellate Court that the accused issued the cheque to the complainant in discharge of the legally enforceable debt of ` 1 lakh and failed to pay the amount of that cheque in spite of the issuance of the statutory notice. There is no ground for interfering with those findings. There is no merit in the revision and the same is hereby dismissed. This order be certified to the trial Court for taking appropriate action.