53 0 0 1 1 Crimiilal RevisionNo1028 of2009 1 IN TliE HlGllOURT OF PUNJAB AND HARYANA AT CHANDIGARH CriminalRcvisionNo1028 of2009 DateofDecision 041122010 1 lrltlchanSinsh OeeePetitioner VERSUS Slalc 01 Punjaband anotller ClORAM IIONBLE MR JUSTICE AlVJINDAL 1 Prescnl lvlrTSanghaSeniorAdvocate with 0 MrSSallghaAdvocate for thepelltioner C Msahecsh PallwaDudejaAdvocale 10r N02 X 888842 C5 A1Jl N DAL JORAT I Z This revision petillonis directd againstl1le dattd Z 262009 by Addilitlilal Scssions Judge Fast 9rack Court r Ludlliana theappeal bythe Olerein Z referrcd as he againstthe judgmenldated 23Ol007 08 llirll undei Seclioll 138 of Ihc InstrumentsAct and hini lo undergorigorous for a periodof 1Y year Z and to pay a fine ofRs0001 ll A offactsisthatlhe No2 llercitlrefcrredas lllc rcslondentand thepetitioner are lhe relatives The pctltloncrhad the in the monthofAtlgust2003 and her for some 8nancial help 111 connectionwith business Thc beiilga closc relative agreedlo tlle same and advanccclhirn a sunl uf I2s650001 on ccount of Ioanto thepetitioner on llleassurancc lhat he will repay lhe Ioan on receiptof thepaynlelltfrom the markclwilhin shorl span of iimc In the vear 2004 the ce app8Chcdthcpcllitioncrwilh a rcquestto return her thc loan but the 8gainsoughtSlX llme Afler lhe expiryof said SlX Uma 2013.03.19 11: 39 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 54 0 e Criminal Revision Noe1028of2009 2 months the again the petitionerbut he started the matter on one pretextor the other Ultimatelyin order to his legallyenforcementliallility the petitionerissueda cheque No05132 F dated O062005for Rs565000Irawn on UCO I3ankBranch Khanna oul of his account No545 On of the saidchequefor encashment throughher banker ie Jammu Kashmir m Bank Branch Khanna thc said cheque was receivedback dishonouredvide 0 memodated 02062005 from UCO 13ankKhanna with the remarks funds C insufflcient After issuinglegal notlce dated 14062005 upon the 0 thc prcsentcomplaint was 81ed A Iler recordillgthc evidence processwas issued Z against the petitionerUponservice the notice of accusatlon issued to L whichhedenied andoptcdto contest I 08 ln ordcr to substanliate lhe chargesthe cxainined herselfasCWl Chainan Lal ManagerofJammu8 W2 Kashmir Bank CW29GurjeetSinghrecord inchargcUCO Bank 0CW39 Z andcloscd hcr evidence When examined tinder Scction 313 CrPC the accuseddenied all the circunlstancesappearingagainsthim and false implicationHe filrther explalnedthal his father had obtainedRs500001 as loan from the in the year 2005 Al Ihat tinlc a blanksignedcheque was delnandedloythe Thcreaftcrthe said chcque Was fahricatedbyentering the hugeamount defencethepetitioner examinedGurmail SinghTaxation Clerk DWll and his fatherDW21 On scrutinyof the evidence the accused was convicted andsentencedaccordinglyHis appealwas also dismissed Theprimeposerputto thisCourt bythe leamed counsel for the Uma 2013.03.19 11: 39 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 55 4 t d Criminal RevisionNoe1028of2009 3 is thal the has failed to shift the onus with regardto issuancc of the chequein her lavour againstany legallyenforceable liabililll As such ll ls a case 01lnisulilisation of lhe chequewhich was issued byhis fatheragainst a loan of Rs500001 which he had received fronl the The alld isrelated tothe petitionerMoney 1 C lransactiolls betwccnlhc pctitionerand the stands admitted 0 However case ofthe petitioner is thathis father Balbir Singhhad receiveda 0 lclan of Rs500001 whereasaccording to the that C0 I showsagainslthe paymentof loan of Rs50001 As regards the Z advancementof loan the respondcnl has led sufficientevidence to prove that the amount wasadvancedto thepetitionerShe was crossaexamined at tr lengthOll this point and she cxplainedthat she had taken a sum of 06 RsA500001 as loan againstthe FDR and she had receiveda sum of Rs50001 from her motherand had advancedthe amounl ofRs650001 7 thepelitionerWith regardto the source of income she has dulystated Z lo Q that hcr husbandhad gone to Germany and had broughtmoney from there Butto thecontrarythe petitioner has neither led any evidence nor proved fact with regardto the issuance of the chcqueagainstthe loan of 1 but lo talk himselfin thewitness box he even did 4 nolcxamine any witncss to prove thepleaas set up byhim Admittedlythe bearsthesignalures of thepctitioner at threeplaceswhich indicates thatthc cheque was isstied bythe pelitioner to discharge the enforceableliability Thoughthe returns for theyear 200304 2004e 05 2005006 and 20064Y7 wcre produced on record by Gurmail Singh DW l l as ExOl to ExD4 btlt thcse returns do ilot helpthe caseof the Uma 2013.03.19 11: 39 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 56 4 Criminal Revision ATo1028of2009 4 petitionerNo entryshowinglhe deliveryofcheque bythepetilioner to the Onds mentioned in the rcturns Thus the chequecannotbe termedas havingbeengivenfor securitypurposes as after the receiptof loan lhe issuanceof the cheque can well bepresumed to be in discharge of legaliyenforceablcliability Unless the accusedfails to prove the return of thc Ioanamount thecheque cannot be termedto be mere security in the said loan transaction Thoughthe petitioner has stated that it was a blank 0 C chcqueand it was not fllled byhim but that would not importthe factum of forgery and the fillingofthe saine cannot be attribuledto the It C5 I was observed by the Apex Court ln case Survalakshmi Cotton Mills Z Limited versus Raivir Industries Limited and others 2008 111RCR Criminall 652 that fillingup of the blanks in a cheque by itself would not amOUllt to forgcryThus for a Iittlewhilc if it assurnedthat though there I 08 are no reason lhat the blanks in thedisputed cheques were fllled up lateron thiscircumstanccin itselfwouldnot amount to forgery m Z Now coming lo the question of in favourof the Il holder il would be to relterate Section 139 of the Negotiable InstrumcntsAcl as uildcrl Presumption in favour of holder It shall be unless the contraryis prove4lhat the holder of a cheque l receivedlhe chequeof the nature referred to in Section 138 for the dischargein whole or 111par4of any debt or other Iiability Thus tbe aloresaid provisionif barely then it would 0110ulhal therc is a Iegaipresumplonthat the chequewas issucd for an antecedcnlliability alld the could be Uma 2013.03.19 11: 39 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document 57 8 CriminalRevision Nt1028 of2009 5 rebuttedonlybythe person who drew the cheque 1S in favourof the holder of the chequeIt was observedin case KIGeorge versus Muhammed Master 19991 97 Companv Cases 664 that available under Section 139 of the InstrumentsAct can bc rebulted bythe accused byadducing evidence Sothe burdenof proof is on the accusedand the evidenceavailableoi record will haveto be m r bybearing in mind lhe abovefact regarding burdenofproof 0 While takingthe factsofthe presentcase it is noticedthat the C had not adduced even a singlewitnessoperating as rebuttalto the I C5 arisen underSection 139 PC whereasthe has 1ed et sufllcicnt evidcncc t0 hold that the pctitioner was to pay lhe loan against Z which he hadissued a chequeThe balled pleaas set up bylhe accusedhas not been by the clear evidence thus it would be sufficientto I draw lhe that the cheque was issuedin discharge of debt and 08 rn the said had gone unrebuttedfor want of evidence on the 7 rccord No other argument hasbeenadvanced Z As regards the quantumof sentence it may be observedthatthe issued a cheque on Ol162005 and even till todaynothinghas bccnpaidby him to the and is still contestingthe false plea which beforeboththe Courts below The trial Courtappcarsto haveawardedlessersentence than what he deserved flndingno merit in the petitionthe same is dismisscd ANJindall Judge 042010 tluimta4i 1 10 J tJ4 Uma 2013.03.19 11: 39 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document