Suraj Bhan v. Hoshiar Singh

oooCRA-S-468-SB-2011o(O&M) 1 INoTHEoHIGHoCOURToOFoPUNJABoANDoHAR ANAoAT CHANDIGARH SR!oN"!201 oooooooooooCRA-S-468-SB-2011o(O&M) ooooooooooooooooooooooooooooooooooooooooooD#$%o"&o'%()*)"+:24!0,!2023 S-.#/oB0#+ o!!!A11%22#+$ 3%.*-* H"*0)#.oS)+40 oooooo ooooooooooooo!!!R%*1"+'%+$ CORAM: HON5B6EoMR!oJUSTICEoN!S!oSHE7HA8AT Present: Mr.oGouravoJain,oAdvocate, forotheoappellant.o Mr.oMalkiatoSingh,oAdvocate, forotheorespondent. N!S!oSHE7HA8AT9oJ!o The present appeal is directed against the judgment dated st31.08.2009 passed by the learned Judicial Magistrate, 1 Class, Fatehabad, whereby the respondent was ordered to be acquitted of the notice of accusation levelled against him. A complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act") was filed by the present appellant/complainant by alleging that he was the proprietor of M/s Garg Agro Chemical Centre, Ghuna, Tehsil and District Fatehabad. The firm of the appellant was the dealer of the firm of the accused-respondent and had also an account with the respondent. As per the appellant, there was a deposit of Rs.3,52,205/- of the appellant's firm on 31.03.2008 with the firm of the accused-respondent. In order to settle the account, the respondent issued cheque No. 924200 dated 20.05.2008 drawn on UCO Bank, Nai Mandi Branch, Sirsa for a oooCRA-S-468-SB-2011o(O&M) 2 sum of Rs.3,52,285. After this, an amount of Rs.3,11,000/- was taken vide DD No.279660 dated 20.05.2008, drawn on State Bank of Patiala, Bhuna Branch. The appellant presented the said cheque for encashment, but the same was dishonoured due to the reason that the payment was stopped by the drawer. Another cheque barring No.685334 dated 11.08.2008 was also issued by the respondent in favour of the appellant for a sum of Rs.3,50,000/-. Again on presentation, the cheque was dishonoured due to the same reason and was returned to the appellant on 15.12.2008. Thereafter, the appellant served a legal notice, asking the respondent to make the payment of Rs.3,50,000/-, however the respondent failed to make the payment and a complaint was filed by the appellant before the learned trial Court. I have heard learned counsel of the parties and with their able assistance, I have gone through the trial court record carefully. Learned counsel for the appellant vehemently argued that in the present case, the learned trial Court completely brushed aside the evidence led by the present appellant and the impugned judgment is legally unsustainable. The appellant had led sufficient evidence to prove on record that the respondent was to pay a sum of Rs.6,63,285/- to the present appellant and the cheque in question was issued only for a sum of Rs.3,50,000/-, as a part payment of the amount due towards him. Even if it was to be assumed that the appellant had to give a sum of Rs.3,00,000/- to the respondent, still the respondent owed a sum of Rs.3,50,000/- to the present appellant. As a consequence, the impugned judgment, whereby the complaint was ordered to be dismissed, was passed by completely ignoring the evidence led by the parties. Apart from that, only a meager amount of Rs.2348.25 was available in the account of the respondent as on 09.12.2008 when the cheque in question was dishonoured due to the reason oooCRA-S-468-SB-2011o(O&M) 3 "Payment stopped by the drawer". Had he not stopped the payment of the cheque, it would have been dishonoured due to "Insufficient Funds". Thus, the most material evidence was overlooked by the learned trial Court. Apart from that, the learned trial Court also overlooked the mandatory provisions of Section 139 of the Act, which raises a statutory presumption in favour of the present appellant. Learned counsel appearing on behalf of the respondent refuted the said contention and submitted that in the impugned judgment, the learned trial Court has taken into consideration the entire evidence led by both the sides and after due appreciation, the impugned judgment has been passed. Learned counsel further contended that the appellant himself owed money to the present respondent and cheques of the respondent have been misused by the present appellant. Having heard the learned counsel of the parties and going through the record of the case, I am of the considered opinion that there is no merit in the present appeal and the submissions made by the learned counsel for the appellant are liable to be rejected. The learned trial Court correctly placed reliance on the testimony of PW-1 Suraj Bhan, the complainant himself, who admitted in his cross-examination that he had an account with the firm of the accused-respondent at Hisar and he had to make a payment of Rs.3,18,802.50 to the accused-respondent in that firm. In fact there were several transactions between the appellant and the respondent. However, on the date of presentation of the cheque, admittedly the present appellant owed a sum of Rs. 3,18,802/- to the accused, he was not entitled to present the cheque and the payment was correctly stopped by the drawer of the cheque, i.e., the present appellant. Still further, the statement of PW-1 Suraj Bhan has been duly corroborated by Tarun oooCRA-S-468-SB-2011o(O&M) 4 Kumar, DW-2 who also stated that the firm of the respondent had to take a sum of Rs.3,45,352.50 from the present appellant. Consequently a cumulative reading of the evidence led by both the sides, it stood established on record that the appellant was liable to pay a sum of more than Rs.3,00,000/- to the respondent-accused and the complaint was not maintainable on account of dishonour of the cheque in question. Further, I find no substance in the submission made by learned counsel for the appellant that the statutory presumption under Section 139 of the Act would come to the rescue of the present appellant. In fact the complainant had to lead evidence to show that the respondent owes some money to him and the complainant is obliged to prove the said fact by leading oral as well as documentary evidence. Thereafter, the appellant can take help of the statutory presumption under Section 139 of the Act. Even otherwise, I have gone through the impugned judgment passed by the learned trial Court and the learned trial Court has recorded valid reasons for passing the impugned judgment. Itohasobeenoheldobyotheo on!bleoSupre"eo#ourtoinotheo"atteroof B0#*:#..#"o3*oS$#$%o"&oM#0#.#*0$.#9o2018(,)oRCRo(C.);)+#2)o268:AIR 2018oSCCo2222,oasofollo$s:% "14.oAsotheotrialocourtoandoHighoCourt,ohavingoappreciated the o evidence o on o record, o has o come o to o diametrically o opposite conclusions, o mandating o herein o to o observe o certain o witness statementsowhichomayohaveoanoimportantobearingoinothisocase.oIn theoprocessesoofoappreciatingotheoevidenceoatotheoappellateostage, weoneedotoo eepoinomindotheoviewsoofothisocourtoasoe!pressedoino"ota #inghoandoAnr.ov.o#tateoofo$un%ab,o1&'()*+o,C,o)Criminal+o-.o/ 1&'(oCri01o&(4o2o3"heoHighoCourtohasonotofoundoinoitso%udgment thatotheoreasonsogivenobyotheolearnedo#essionso1udgeoforodiscarding theotestimonyoofo$4*oando$45owereoeitherounreasonableoor perverse.o4hatotheoHighoCourtohasodoneoisotooma eoanoindependent oooCRA-S-468-SB-2011o(O&M) 5 reappraisaloofotheoevidenceoonoitsoownoandotoosetoasideotheoacquittal merelyoonotheogroundothatoasoaoresultoofosuchore-appreciation,othe HighoCourtowasoinclinedotooreachoaoconclusionodifferentofromothe oneorecordedobyotheolearnedoSessionsoJudge.oThisoCourtohas repeatedlyopointedooutothatotheomereofactothatotheoAppellateoCourt isoinclinedoonoaore-appreciationoofotheo evidenceotooreachoa conclusionowhichoisoatovarianceowithotheooneorecordedoinotheoorder ofoacquittalopassedobyotheoCourtobelowowillonotoconstituteoaovalid and o sufficient o ground o for o setting o aside o the o acquittal. o The jurisdictionoofotheoAppellateoCourtoinodealingowithoanoappeal againstoanoorderoofoacquittaloisocircumscribedobyotheolimitationothat noointerferenceoisotoobeomadeowithotheoorderoofoacquittalounlessothe approachomadeobyotheoloweroCourtotootheoconsiderationoofothe evidenceoinotheocaseoisovitiatedobyosomeomanifestoillegalityoorothe conclusionorecordedobyotheoCourtobelowoisosuchowhichocouldonot haveobeenopossiblyoarrivedoatobyoanyocourtoactingoreasonablyoand judiciouslyoandois,otherefore,oliableotoobeocharacterisedoasoperverse. Whereotwooviewsoareopossibleoonoanoappraisaloofotheoevidence adducedoinotheocaseoandotheocourtobelowohasotakenoaoviewowhichois plausibleoone,otheoAppellateoCourtocannotolegallyointerfereowithoan orderoofoacquittaloevenoifoitoisoofotheoopinionothatotheoviewotakenoby theoCourtobelowoonoitsoconsiderationoofotheoevidenceoisoerroneous.

15.o InoRameshoBabulaloDoshiov.oStateoofoGujarat,o1997(3)oRCR (Criminal)o62o:o1996oCriLJo2867,othisoCourtoobserved: "ThisoCourtohasorepeatedlyolaidodownothatotheomereofactothat aoviewootherothanotheooneotakenobyotheotrialoCourtocanobe legitimately o arrived o at o by o the o appellate o Court o on reappraisaloofotheoevidenceocannotoconstituteoaovalidoand sufficientogroundotoointerfereowithoanoorderoofoacquittal unlessoitocomesotootheoconclusionothatotheoentireoapproachoof theotrialoCourtoinodealingowithotheoevidenceowasopatently illegaloorotheoconclusionsoarrivedoatobyoitowereowholly untenable.oWhileosittingoinojudgmentooveroanoacquittalothe appellateoCourtoisofirstorequiredotooseekoanoanswerotoothe questionowhetherotheofindingsoofotheotrialoCourtoareopalpably oooCRA-S-468-SB-2011o(O&M) 6 wrong, o manifestly o erroneous o or o demonstrably unsustainable.oIfotheoappellateocourtoanswersotheoabove questionoinotheonegativeotheoorderoofoacquittaloisonototoobe disturbed." Still o further o in oCriminal o Appeal o No(s.) o 410-411/2015 o [Ravi SharmaoVsoStateo(GovernmentoofoN.C.T.oofoDelhi)oandoanother],odecidedoon

11.07.2022,oHon'bleotheoSupremeoCourtohasoheldoasounder:- "Beforeoventuringointootheomeritsoofotheocase,oweowouldolike tooreiterateotheoscopeoofoSectiono378oofotheoCodeoofoCriminal Procedureo(foroshorto'Cr.P.C.')owhileodecidingoanoappealobyothe HighoCourt,oasotheopositionoofolawoisoratherosettled.oWeowouldolike tooquoteotheorelevantoportionoofoaorecentojudgmentoofothisoCourtoin JafarudheenoandoOthersov.oStateoofoKeralao(2022oSCCoOnlineoSC 495)oasofollows: "25.oWhileodealingowithoanoappealoagainstoacquittaloby invokingoSectiono378oofotheoCr.PC,otheoAppellateoCourtohas tooconsiderowhetherotheoTrialoCourt'soviewocanobeotermedoas aopossibleoone,oparticularlyowhenoevidenceoonorecordohas beenoanalyzed.oTheoreasonoisothatoanoorderoofoacquittaloadds upotootheopresumptionoofoinnocenceoinofavouroofotheoaccused. Thus,otheoAppellateoCourtohasotoobeorelativelyoslowoin reversingotheoorderoofotheoTrialoCourtorenderingoacquittal. Therefore,otheopresumptionoinofavouroofotheoaccusedodoes notogetoweakenedobutoonlyostrengthened.oSuchoaodouble presumptionothatoenuresoinofavouroofotheoaccusedohasotoobe disturbedoonlyobyothoroughoscrutinyoonotheoacceptedolegal parameters." Consideringotheopeculiarofactsoandocircumstancesoofotheocaseonoted above,ocoupledowithotheoreasonsoaforementioned,othisoCourtoisoofotheoconsidered viewothatotheoinstantoappealoisobereftoofomeritoandowithoutoanyosubstance;othus,oit mustofail.o oNoocaseoforointerferenceohasobeenomadeoout.o oConsequently,othe stjudgmentodatedo31.08.2009opassedobyotheolearnedoJudicialoMagistrate,o1 oClass, oooCRA-S-468-SB-2011o(O&M) 7 isoorderedotoobeoupheld. Resultantly,owithotheoabove-saidoobservationsomade,otheopresent appealostandsodismissed. oPendingoapplication(s),oifoany,oisoalsoodisposedooff. Caseoproperty,oifoany,obeodealtowith,oand,odestroyedoafterotheoexpiry ofoperiodoofolimitationoforofilingotheoappeal,oinoaccordanceowitholaw.o oTheotrial Courtorecordobeosentobackoforthwith. oo (N.S.oSHEKHAWAT)

24.05.2023 oooooooooooooJUDGE mks WhetheroSpeaking/Reasoned: YESo/oNO WhetheroReportable: YESo/oNO