IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No.4059 of 2013.
Reserved on : 11.09.2017.
Decided on : 22.09.2017.
[ENTITY] Petitioner. Versus [ENTITY] & ors. Respondents. Coram
The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting?1 Yes.
For the petitioner : Mr. [ENTITY], Sr. Advocate with Mr. [ENTITY], Advocate.
For the respondent : Mr. [ENTITY], Deputy Advocate r General with Mr. [ENTITY], Law Officer, for respondent No.1.
Mr. [ENTITY], Sr. Advocate with Mr. [ENTITY], Advocate, for respondent No.2.
[ENTITY], Judge.
The present Criminal Revision Petition under [SECTION] read with [SECTION] of the [ACT], is maintained against the judgment dated 21.6.2013, passed by learned Sessions Judge, (Forests) Shimla, in [CASE NUMBER], dismissing the appeal of the petitioner and confirming the judgment of conviction and sentence passed by learned Judicial Magistrate 1st Class, Court No.I, Shimla, District Shimla, in [CASE NUMBER], dated 8.6.2010, whereby the petitioner was convicted and sentenced to suffer rigorous Whether reporters of Local Papers may be allowed to see the judgment? Yes.
imprisonment for a period of one year for the offence punishable under [SECTION] of the [ACT] and to pay compensation to the tune of `16,00,000/-, to the complainant.
2. The key facts, giving rise to the present petition are that the complainant/respondent (hereinafter referred to as the 'complainant') maintained the complaint under [SECTION] of the [ACT] (hereinafter referred to as 'Act') against the accused/petitioner (hereinafter referred to as the 'accused'). As per the complainant, on 31.5.2007, accused being Branch Manager of H.P. State Co-operative Bank Ltd. Taklech Branch, had unlawfully transferred a sum of `22,96,000/- from the account of complainant to the account of [ENTITY], without the consent and written request of the complainant and when the complainant confronted the accused qua his illegal transfer of amount from his account, he admitted transfer of such amount and assured the complainant to repay the amount. The accused issued cheque bearing Nos.5555559 dated 6.11.2007, amounting to `12,00,000/- in favour of the complainant in discharge of his aforesaid liability against his account in the same Bank i.e. H.P. State Co-Operative Bank Ltd. Taklech Branch. The said cheque was presented and was dishonoured with the remarks 'Exceeds Arrangements'. The accused was issued legal notice dated 26.5.2008, Ex.CW1/D, to pay the cheque amount, however, despite receipt of notice, accused failed to make the payment of cheque amount. Hence, the complaint was maintained before the learned Trial Court under the aforesaid Section to proceed against the .
accused.
3. Mr. [ENTITY], learned Senior Counsel appearing on behalf of the accused has argued that the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court is without appreciating the facts, which have come on record to its true perspective. He has argued that the learned Trial Court has failed to take into consideration the fact that the cheque was issued as a security and there was no consideration for issuance of cheque ignoring all these aspects, so the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court is required to be set aside. He has further argued that even the holder of FDRs, [ENTITY], has stated before the learned Magistrate that FDRs do not belong to him. He has argued that it is for the Bank to return the FDRs to the complainant and so, the accused cannot be held guilty.
4. On the other hand, Mr. [ENTITY], learned Senior Counsel appearing on behalf of the complainant has vehemently argued that under [SECTION] of the [ACT], there is a presumption in favour of the holder of the cheque. The cheque was issued for consideration, as the accused has taken away money from the Bank account of the complainant and prepared the FDRs in the name of some other person, which other person used, as a security with the .
Government for obtaining the contract from the PWD authorities, when this came to the notice of complainant, accused issued cheque to the complainant for returning the amount. He has further argued that the cheque was issued for consideration, but for the sake of arguments, even if it is taken that the cheque was issued, as a security then also it is enforceable and it is for consideration.
5. In rebuttal, learned Senior Counsel appearing on behalf of the accused has argued that as the money is still lying with the Bank, the present petition is required to be allowed and the complaint deserves dismissal.
6. To appreciate the arguments of learned Senior Counsel for the parties, I have gone through the record in detail.
7. The complainant was having two FDRs in the H.P. State Cooperative Bank Ltd; Taklech Branch, Tehsil Rampur, District Shimla, for an amount of `75,00,000/- and `25,00,000/-, respectively and the accused was Manager of the said Bank. The case of the complainant is that the accused has transferred unauthorisedly an amount of `22,96,000/-, from his account and deposited the same in the account of one [ENTITY] and when he came to know about this withdrawal, he approached the accused.
The accused admitted his guilt and promised to pay this amount, as the accused has withdrawn this amount from the account of .
complainant, he had issued him two cheques including cheque Ex.CW1/A, for a sum of `12,00,000/-, when this cheque was deposited, it was dishonoured with remarks 'Exceeds Arrangements'. The statutory period to pay the amount in the notice was given to the accused, but the accused has failed to pay the amount. Complainant [ENTITY], while appearing in the witness box as CW-1, deposed that accused was working as Manager in H.P. State Cooperative Bank, Taklech Branch, at the relevant time. He has further deposed that he was having two FDRs of `75 lacs and `25 lacs. He also deposed that he checked his account and found that accused had transferred a sum of `22,96,000/- from this account to the account of one [ENTITY], without his consent and request. He further deposed that thereafter accused tendered apology and issued cheque Ex.CW1/A, amounting to `12,00,000/- in his favour in discharge of his part.
The said cheque was presented by him in the Bank and the same was dishonoured. The cheque was received with return memo Ex.CW1/C, thereafter notice Ex.CW1/D, was issued, vide postal receipt Ex.CW1/E and acknowledgement Ex.CW1/F and postal certificate Ex.CW1/G. Despite receipt of notice, the accused failed to make payment within the statutory period. In his cross-
examination, he denied that a sum of `22,96,000/- is still in his .
name and deposed that the said amount is lying deposited in the name of [ENTITY], which is in the shape of FDR. CW-2 [ENTITY], Manager in H.P. State Cooperative Bank Ltd; Taklech, proved on record account statement of the accused, Ex.CW2/A and copy of register of cheques etc. returned unpaid Ex.CW2/B. He has deposed that the cheque was not cleared since the accused was not having sufficient funds in his account. He has denied that the cheque was not issued against the account of the accused. CW-3 [ENTITY], proved on record the statement of account of the complainant Ex.CW3/A. DW-1 [ENTITY], deposed that the account was in the name of complainant and he was having two FDRs amounting to `75 lacs and `25 lacs in the Bank. Both these FDRs were lying with the Bank. The amount of `22,96,000/- was transferred in the name of [ENTITY]. He has proved on record copy of transfer voucher Ex.D-3. He further deposed that the Bank was paying interest on this amount to [ENTITY]. He further deposed that the amount is transferred from one account to another account on the request of the person concerned after execution of transfer voucher. He further deposed that the amount was transferred to the account of [ENTITY]. In his cross-
examination, he admitted that only complainant was authorized to withdraw money from LABOD account. He also admitted that as per voucher Ex.D3, amount of `22,96,000/- was drawn from the .
account of complainant and FDR was prepared in the name of [ENTITY]. He also admitted that for such transfer written request was required to be made by the complainant. He also admitted that amount could not have been withdrawn on telephonic call or oral request of the complainant. He further deposed that no written request was received by the Bank for such transfer. DW-2, [ENTITY], deposed that he was a contractor and was having account in Cooperative Bank, Taklech Branch. The Fixed Deposit, which he was having was pledged with Executive Engineer, HP PWD, Kumarsain. One FDR was amounting to `22,46,000/-. He further deposed that these FDRs were given to him by his partner [ENTITY]. He further deposed that on 29.11.2007, he came to know that these FDRs were prepared after transferring the amount from the account of complainant. He further deposed that he was receiving interest from the FDRs. He admitted that amount invested in these Fixed deposits was not belonging to him. The accused has specifically admitted that he has issued the cheques in favour of the complainant. In reply to the question put to the accused while recording his statement under [SECTION] of the [ACT], he admitted that during the year 2007, he was posted as Branch Manager in H.P. State Cooperative Bank Ltd; Taklech Branch and also that the complainant was having cash credit limit facility in his bank to the tune of `1,00,00,000/- against .
FDR's of the same amount deposited by the complainant and also admitted that the issuance of the cheque in question, but took the plea that the cheque has been issued, as a security and further took the plea that he infact had been authorized by the complainant to draw and to make transfers from his account and thus, he pleaded innocence. Perusal of the stand taken by the accused while cross-examining the witnesses produced by the complainant as well as while replying to questions put to the accused under [SECTION] of the [ACT] and at the time of leading evidence in defence goes to show that he has admitted that he had issued cheque Ex.CW1/A in favour of the complainant, but he has tried to show that infact it was a cheque issued by way of security. The cheque Ex.CW1/A, was issued by the accused to discharge his liability towards the complainant or that it was by way of security as alleged by the accused. While appreciating this aspect of the case, it has also to be kept in mind that the accused is required to prove his plea by preponderance of probability.
8. The case of the complainant is that he was having cash credit facility in H.P. Cooperative Bank, Taklech Branch, where the accused was a Manager at that time. He had been granted this facility against two FDRs one in the sum of `75,00,000/- and another in the sum of `25,00,000/-. The complainant while deposing as CW-1, had categorically stated so. This aspect of his .
statement had not been controverted by the accused. The accused while replying to questions No.2 and 3 put to him, under [SECTION] of the [ACT], had further admitted this aspect of the case of the complainant. The accused had further admitted this aspect of the case by examining DW-1 [ENTITY], Manager of H.P. Cooperative Bank, Taklech Branch, he himself had tendered in evidence Ex.D-1 and Ex.D2, copies of the FDRs. There is no dispute inter se the parties with respect to the fact that H.P. State Cooperative Bank, had extended loan facility to the complainant against fixed deposit amount to the tune of `1,00,00,000/-. Further, the case of the complainant is that the accused while acting as Manager of the Bank, had unauthorisedly transferred a sum of `22,96,000/-, from his loan account and had deposited this amount in the account of one [ENTITY] and when complainant come to know about this unauthorized withdrawal from this account, he approached the accused and had confronted him with his illegal act. He had initially tried to defensive, but when complainant adopted a stern posture, he admitted his guilt and promised to pay this amount to him and in lieu thereof, he issued him two cheques including cheque Ex.CW1/A, each in the sum of `12,00,000/-, which also included the interest, which had accrued on this loan amount, which was liable to be paid to him by the Bank. CW-1 (complainant) had categorically deposed that when he came to know about the withdrawn of `22,96,000/- from his .
loan account, he immediately approached the accused and asked him about how he has withdrawal of this amount. Initially, the accused tried to put off the matter, but when he asked him sternly in this behalf, he admitted the withdrawal of this amount and its transference in the fixed deposit account of one [ENTITY]. He apologized for this act and handed over to him two cheques each in the sum of `12,00,000/-, dated 1.11.2007 and 6.11.2007. Perusal of the stand taken by the accused, while cross-examining him, he had not disputed the transfer of the amount of `22,96,000/- from the account of the complainant in the account of [ENTITY], but he had tried to justify it by taking the plea that he being Branch Manager, was competent to transfer it. However, replying to question No.7, put to him under [SECTION] of the [ACT], he had taken the plea that this transfer had been effected by him with permission of the complainant.
Ex.D-4, an application moved by the complainant whereby he had requested the Manager of H.P. State Cooperative Bank Ltd. Taklech Branch, to provide him financial assistance by way of loan to the tune of `85,00,000/- against FDRs of `1,00,00,000/-. There is nothing on record to show that he had authorized the accused to transfer any amount out of his loan in favour of any third person.
However, he had created a lien with respect to the FDRs in favour of the bank in consideration of the sanctioning of the loan facility.
DW-1 [ENTITY], had not supported the case of the accused. He had rather specifically deposed that the transfer could be effected only if a request is made by the depositor and in that eventuality necessary voucher should be signed by the depositor. In his cross-
examination, he has stated that there is no record available in the Bank to show that the complainant had made any request through any application or had signed the necessary voucher in this behalf.
He has categorically stated that under the given facts, it was only the complainant who was competent to draw amount from this loan account. He has further stated that the amount of `22,96,000/- in respect whereof FDRs, copies whereof are Ex.D6 and Ex.D7, had been made in the name of one [ENTITY], had been withdrawn from the account of the complainant. Even, DW-2 [ENTITY], has also admitted that the FDRs in his name had been made on the basis of the transfer of this amount from the account of the complainant. So, there is no hesitation to conclude that the accused had transferred a sum of `22,96,000/- from the loan account of the complainant without his consent in favour of DW-2 [ENTITY].
9. Now, the question arises as to whether accused had issued cheque in question for any legally enforceable claim. It has already been observed that the accused had unauthorisedly .
withdrawn a sum of `22,96,000/-, from the account of the complainant without the consent express or implied of the complainant. It is correct that accused at that time was working as a Manager and by misusing his aforesaid position, he had unauthorisedly transferred the amount from the account of the complainant in the account of a third person. It is the case of the complainant that when he questioned the accused in this behalf, he ultimately admitted his guilt and to discharge his liability, he handed over to him two cheques including Ex.CW1/A. If considered in the light of these facts, then it could be held that the accused had issued the cheques in question for a lawful consideration to discharge his liability, which was very much enforceable in the sense that the complainant could have lawfully recovered this amount from the accused by way of civil action too.
It cannot be held that since the accused was acting as a Manager, so he could not be held to have issued the cheques for consideration. Rather, it appears that to save himself from the penal action, he in his wisdom had through it proper to reimburse the amount unlawfully withdrawn by him from the complainant account. DW-1 [ENTITY], had also deposed that the FDRs though standing in the name of [ENTITY], are still lying with the H.P. State Cooperative Bank and necessary interest is also given by the Bank, on this amount. Rather, both of them are separate legal .
entities and the FDRs standing in the name of [ENTITY] and interest accrued thereon could not be held to be the account of the complainant. Accused had also tried to show that the cheque in question had not been issued by him against his own account.
Rather, he had tried to show that it had been issued against some other account. So even, if it is held that he had mentioned some another account number in this cheque, even then it is not possible to hold that the cheque in question did not pertain to the account maintained by the accused with H.P. State Cooperative Bank Ltd.
The cheque had been presented for collection of amount within the period of its validity and had been dishonoured due to insufficient amount in the account of the accused. The accused while replying to question No.11 put to him under [SECTION] of the [ACT], had also admitted that the complainant had served upon him the necessary notice. Complaint had also been filed within the stipulated period.
10. Learned Senior Counsel appearing on behalf of the accused has relied upon the judgment in Sudhir Kumar Bhalla vs. Jagdish Chand and others, 2008 (7) Supreme Court Cases 137. Relevant para-22 of the judgment is reproduced hereinbelow :
"On examination of the abovestated .
findings of the learned Single Judge in the judgment impugned before us, we find that the learned Single Judge has not addressed himself on the legal question raised before him by the appellant that the criminal liability of the appellant under the provisions of [SECTION] of the Act are attracted only on account of the dishonour of the cheques issued in discharge of liability of the appellant under the provisions of [SECTION] of the Act are attracted only on account of the dishonour of the cheques issued in discharge of liability or debt but not on account of issuance of security cheques. The learned Single Judge has also not given cogent, satisfactory and convincing reasons for disbelieving and discarding the present-charge evidence of the appellant corroborated by the evidence of the expert opinion in regard to the interpolation in and fabrication of the cheques by adding one more figure '0" to make `30,000/- to `3,00,000/- and similarly adding one more figure '0' to make `40,000/- to `4,00,000/-."
11. As far as the ratio of this judgment same is not applicable to the facts of the present case, as the cheque was given to return the money, so the same is not applicable to the facts and circumstances of the present case, as the accused has infact withdrawn the money from the account of the complainant and utilized for some other purpose and in repayment of the same, he has issued the cheque. At the same point of time, there is nothing .
on record to show that it is the case of the accused that the cheque was interpolated, so the judgment is not applicable to the facts of the present case.
12. Hon'ble Apex Court in [PRECEDENT], has held as under :
"Applying the definition of the word "proved" in [SECTION] of the [ACT] to the provisions of [SECTION] and [SECTION] of the Act, it becomes evident that in a trial under [SECTION] of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under [SECTION] and [SECTION] of the Act help him shift the burden on the accused. The presumptions will live, exists and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debit or liability. A presumption is not in itself evidence, but only makes a prima facie case for a .
party for whose benefit it exists."
13. Applying the ratio of the judgment to the facts of the present case, it is clear that the accused has failed to prove that the cheque was not issued for a consideration. It is proved on record that the accused has utilized the money of the complainant to the extent of cheque, he has issued the cheque to the complainant towards repayment and it is for the consideration.
14. After going through the facts of the present case, this Court finds that the accused has failed to rebut the initial presumption in favour of the complainant, as the cheque was issued towards the repayment of money, the accused has withdrawn from the account of the complainant. So, this Court comes to the conclusion that initially presumption in favour of the complainant that it was issued for consideration towards the payment of money, which the accused was liable to pay the complainant, is not rebutted.
15. Hon'ble Apex Court in [PRECEDENT], has held as under :
"6. The High Court in appeal reversed the concurrent finding of the learned Magistrate and the learned Sessions Judge. The High Court found that the cheque was actually from the cheque book that was issued prior to 2000 as the cheque leaf itself mentioned .
the date in printed ink " / 199 ". The High Court observed that it is hard to believe that a business transacting party would give a cheque which is of the decade 1990 in relation to the transaction in 2007. The High Court accepted the argument of the defendant that the complainant used the old cheque due to ill will because of denial of the defendant Firm to release the firm "Pokari" in his theatre. Further, the High Court noted that the complainant in his statement has deposed that he had withdrawn the amount of rupees 5 lakhs, 2 days prior to giving it to the defendant but he failed to bring on record any receipt or other proof of such withdrawal of money from the bank. The High Court found the case of the complainant lacking to prove the offence under [SECTION] of the [ACT].
7. We have heard the learned counsel appearing for the appellant as also the learned counsel appearing for the respondent. The complainant has alleged that the money (loan) was advanced to the defendant on 20.5.2006 in relation to which the cheque was issued to him by the defendant on 16.1.2007. The cheque was for rupees 5 lakhs only, bearing No. 822408. It is of great significance that the cheque has not been disputed nor the signature of the defendant on it. There has been some controversy before us with respect to [SECTION] of the [ACT] as to whether the complainant has to prove .
existence of a legally enforceable debt before the presumption under [SECTION] of the [ACT] starts operating and burden shifts to the accused. [SECTION] reads as follows :
"[SECTION]. Presumption in favour of the holder. It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in [SECTION] for the discharge, in whole or in part, of any debt or other liability."
9. Therefore, in the present case since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under [SECTION] would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability. To this effect, the accused has come up with a story that the cheque was given to the complainant long back in 1999 as a security to a loan; the loan was repaid but the complainant did not return the security cheque. According to the accused, it was that very cheque used by the complainant to implicate the accused. However, it may be noted that the cheque was dishonoured because the payment was stopped and not for any other reason. This implies that the accused had knowledge of the cheque being presented to the bank, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by .
the accused is in unworthy of credit, apart from being unsupported by any evidence.
10. Further, the High Court relied heavily on the printed date on the cheque. However, we are of the view that by itself, in the absence of any other evidence, cannot be conclusive of the fact that the cheque was issued in 1999. The date of the cheque was as such 20.5.2006 (sic 16.1.2007). The accused in her evidence brought out nothing to prove the debt of 1999 nor disprove the loan taken in 2006.
11. In the light of the above reasoning, we find that the learned High Court was misplaced in putting the burden of proof on the complainant. As per [SECTION], the burden of proof had shifted on the accused which the accused failed to discharge. Thus, we find merit in this appeal."
16. Applying this law to the facts of the present case, it is clear that the complainant has proved its case beyond the shadow of reasonable doubt. Now, coming to the arguments of learned Senior counsel appearing on behalf of the accused that as the complainant has also maintained a suit for the recovery of this amount, which was dismissed in default and so, the complaint requires dismissal. This Court finds that no substance in the arguments of learned Senior Counsel for the accused that the complainant should enforce has a right by way of civil litigation, the complainant has proved its case beyond the shadow of reasonable doubt. This Court finds that no force in the arguments of learned .
Senior Counsel for the accused.
17. As discussed hereinabove, the petition maintained by the petitioner is without any merit, as the complainant has proved its case beyond the shadow of reasonable doubt. The cheque was issued for consideration, so the judgment of conviction passed by the learned Trial Court and affirmed by the learned lower Appellate Court, needs no interference.
18. In view of what has been discussed hereinabove, the present revision petition, which sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. Pending application (s), if any, shall also stands disposed of.
([ENTITY]) 22nd September, 2017 Judge (CS)