IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Revision No.4 of 2002 Judgment reserved on: 14th October, 2008 Decided on: 17th October, 2008. M/s Kamal General Store …Appellant Versus Kishori Lal Vij …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 yes For the Petitioner : Mr. G.C. Gupta, Sr. Advocate with Mr. Mohit Thakur, Advocate. For the Respondent : Mr. N.K. Thakur, Advocate General. Surjit Singh, Judge Present revision petition, under Section 397 Cr. P.c. read with Section 482 Cr. P. C., is directed against the judgments of trial Magistrate and the Appellate Court (Additional Sessions Judge), whereby the revision petitioner has been convicted by the trial Court of an offence, under Section 138 of the Negotiable Instruments Act, and sentenced to pay a fine of Rs.52,000/-; in default of payment of fine to undergo simple imprisonment for a period of three months, and the amount of fine has been ordered to be paid to the respondent, as compensation, and his appeal against the said judgment has been dismissed by the Additional Sessions Judge. Whether reporters of the local papers may be allowed to see the judgment? …2… 2. Facts relevant for the disposal of revision petition may be stated. Respondent Kishori Lal Vij, hereinafter called complainant, filed a complaint, under Section 138 of the Negotiable Instruments Act, in the Court of Chief Judicial Magistrate, Una, alleging that he had advanced two loans of Rs.20,000/- each, to the revision petitioner, hereinafter called accused, on 18th April, 1994 and 9th May, 1994, and on both these dates, the accused issued a cheque for Rs.20,000/-. The number of cheque issued on 18th April, 1994 was 005718 and the number of cheque issued on 9th May, 1994 was 000648. Both the cheques were drawn on Central Bank of India, Bhuntar branch. Complainant presented the cheques to his bank, i.e. Central Bank of India, Una branch, for collection. The same were returned to him on 23.5.1994 with a memo. “refer to drawer”, meaning thereby that the accused did not have money in his account for honouring the cheques. Complainant then sent a notice on 24.5.1994 to the accused by registered post. Despite service of notice, accused did not pay the amount of the cheques. On expiry of one month from the date of sending of the notice, complaint was filed. 3. Accused took the plea that as a matter of fact complainant was posted as a Manager, Central Bank of India at Bhuntar, in the years 1991 and 1992, and that it was in the year 1991 that he had taken loan of Rs.40,000/- from him and issued him two cheques, one in July, 1991, and the other in December, 1991, and that the dates on these two cheques …3… had been forged by the complainant. He claimed that he had returned the loan amount of Rs.40,000/- taken by him in the year 1991, in instalments. Initially the instalments were of Rs.1000/- per month and later on the amount had been increased to Rs.2000/-. He stated that he never borrowed any money from the complainant on 18.4.1994 and 9.5.1994, as alleged by him. He claimed that as a matter of fact complainant himself wrote a letter Ext.D-1 to him, on 6.4.1994, demanding the money, allegedly due to him, even though he had already repaid the entire amount of money taken as a loan in the year 1991, and that letter Ext.D-1, completely belied the complainant’s allegation of his having loaned Rs.20,000/- on 18.4.1994 and similar amount on 9.5.1994. 4. Both the Courts below disbelieved accused’s plea. Learned trial Magistrate observed that even if accused’s plea of his having issued the cheques in the year 1991 was taken to be true, that would not absolve him of criminal liability, because the dates of the cheques were to be taken to be those as mentioned thereon at the time of their presentation, by the complainant, to his banker, for collection. Learned Additional Sessions Judge disbelieved the accused’s version with the observation that if he had issued cheques in respect of the loan, allegedly taken by him in the year 1991, and that the loan amount had been repaid, as claimed by him, he ought to have taken back the cheques from the complainant. …4… 5. I have gone through the record and heard the learned counsel for the parties. 6. Accused produced the cheque books, containing counterfoils, issued in his favour by Central Bank of India, Bhuntar branch. Counterfoil of Cheque No.005718 (Ext. C-1) is Ext. D-3 and counterfoil of the other cheque No.000648 (Ext.C-2) is Ext.D-2. As per these counterfoils, Exts. D-3 and D-2, cheque No.005718 was issued on 12.12.1991 and cheque No.000618 was issused on 2.7.1991. Both the cheques are issued to C.B.I., Manager. It may be stated that the complainant is a Manager in Central Bank of India. As already noticed, he was posed in the years 1991 and 1992 in Bhuntar branch of Central Bank of India and in the year 1994, when according to him cheques Exts. C-1 and C-2 were issued on 18.4.1994 and 9.5.1994, respectively, he was posted in Central Bank of India at Una. 7. Counterfoils Exts. D-3 and D-2 themselves may not be sufficient to prove the accused’s plea that he had issued the two cheques in the year 1991, but when the same are scrutinized by reference to other evidence on record, led by the complainant himself, it does appear that defence plea is probable. Dates of the cheques Exts. C-1 and C-2 are not in the same ink and pen as the rest of the body of the two cheques. That means, the dates were not there on the two cheques when they were issued and signed by the accused. Then there is a letter Ex.D-1, written by the complainant to the accused. Letter is dated 6.4.1994. It was shown to the …5… complainant when he was in the witness box as CW-1. He admitted that he had written this letter to the accused. Letter makes an interest reading. Complainant writes to the accused that he had promised to pay the entire amount due alongwith interest by January last, but he had not received anything, though the month of March had also passed. It is further written that the money had been given to the accused by trusting him and it was not a sin. Further, it is written that if helping someone is a sin, then nobody would help anybody. Further it is written that the complainant is getting reminders that he should send back the money. Hope has been expressed that the money due would be remitted immediately on receipt of letter. A warning is also sounded in the letter that in case the complainant does not get the money immediately, he would be going to accused’s place at Bhuntar. 8. When the aforesaid letter was shown to the complainant, in the course of cross-examination, he stated that the letter was with respect to that amount of money which was due to him when he was stationed at Bhuntar, and that during his posting at Bhuntar, sometime he used to borrow rupees four/five thousands from the accused and sometime the latter used to borrow similar amount of money from him. Admittedly, the complainant was not posted at Bhuntar in April and May, 1994, when he allegedly loaned the amounts of two cheques Exts. C-1 and C-2. Ext. C-1 is dated 18.4.1994. Complainant’s case is that on that day he advanced a sum of Rs.20,000/-, as loan to the accused and by …6… way of security, the accused issued the cheque. The other cheque Ext.C-2 is dated 9.5.1994 and the complainant’s case again is that it was issued as a security for the loan amount, which he advanced to the accused on that very day. Now, when on 6.4.1994, the complainant had been grudging, vide letter Ext.D-1, about the non-payment of an amount of rupees four/five thousands, which the accused had taken from him at the time when he (the complainant) was posted at Bhuntar, it is highly improbable that he would have again loaned huge amount of Rs.40,000/-, in two instalments of Rs.20,000/- each, to the accused on 18.4.1994 and 9.5.1994. 9. As already noticed, in letter Ext.D-1, complainant grudges his having trusted the accused. It is not believable that any man of ordinary prudence, leave alone a person of the wisdom and prudence of the complainant, who himself is a Manager of a Bank, would advance money to a person, who has already defaulted in repayment of the loan and that too when the lender no longer lives at the place where the borrower resides, but is transferred to a place, at a distance of about 200 kilometres (distance between Kullu and Una is about 200 kms). 10. Further Ext.D-1 suggests that the complainant did not have any money with him. It is mentioned therein that people were writing letters to the complainant for return of money and so the accused should repay the money due. And the money due according to the statement of the complainant was just Rs.4000/- or Rs.5000/-. How is it that when the …7… complainant did not have even Rs.4000/- or Rs.5000/- with him on 6.4.1994, when Ext.D-1 was written, to repay the money which he owed to others, that he had Rs.40,000/- to pay to the accused in just about one month thereafter. 11. Reasoning given by the two Courts below to reject the defence plea is not correct. Complainant categorically states that the cheques were issued for the money advanced by him on the dates mentioned as the dates of issue of cheques. This statement is not believable as demonstrated hereinabove. If it is so, that means the cheques are without consideration. Therefore, trial Court’s reasoning for rejection of defence plea viz. the dates mentioned in the cheques are to be taken as dates of their issue would not mean that the cheques were issued for the discharge of loans(allegedly taken on 18.4.1994 and 9.5.1994). So far as the reason given by the appellate Court that if the accused had discharged the earlier debts, as claimed by him, he ought to have taken back the cheques is concerned, that would not lead to a presumption that the cheques were issued for repayment of money allegedly loaned on 18.4.1994 and 9.5.1994. The presumption which can at the most be drawn would be that the accused had not repaid the earlier loan(s) and so the cheques remained with the complainant. 12. In view of what has been stated hereinabove, it is apparent that the two Courts below have failed to appreciate the evidence in the right perspective. Defence of the accused is probabilised by complainant’s own evidence. Presumption …8… that arises in favour of the holder of the cheque that it is for the discharge of any debt or other liability, per Section 139 of the Negotiable Instruments Act, is subject to contrary proof. Law is well settled that standard of proof for rebutting the presumption is not the same as is for proof of a criminal charge. For rebuttal of presumption arising in favour of prosecution, principle of preponderance of probability applies, while for proving a criminal charge, principle of strict proof is applicable. If the evidence on record, irrespective of the fact whether the said evidence is led by the accused or the complainant, probabilises the accused’s plea that the cheque was not for the discharge of any debt or other liability, the presumption under Section 139 of the Negotiable Instruments Act would not arise. If any authority is need, reference may be made to two judgments of the Hon’ble Supreme Court. The citations are K. Prakashan Vs. P.K. Surenderan, (2008) 1 SCC 258 and Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, (2008) 4 SCC 54. 13. As a result of above discussion, revision petition is allowed. Judgments of the two Courts below are set aside and the revision-petitioner/accused is acquitted. October 17, 2008 (ss) ( Surjit Singh ), J.