IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS (Leave to Appeal) APPLICATION No. 1787/2001 With Appeal No. 195 /2011 (Under Section 378(4) of the CrPC) Karamvir Giri …….Applicant/Appellant Versus Ashok Kumar Singhal ……Respondent Mr. Navneet Kaushik, Advocate, for the appellant. Mr. Lalit Sharma, Advocate, for the respondent. 24th August, 2011 Hon’ble Servesh Kumar Gupta, J. Heard learned Counsel for the parties and perused the impugned judgment and order. Leave to appeal is granted. The appeal is admitted. 2. Heard on the merits of the appeal. Also perused the materials available on record. 3. The judgment and order dated 19.7.2001, passed by the Ist Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Roorkee in Complaint Case No. 45/1995, Karamvir Giri v. Ashok Kumar Singhal is under challenge in this appeal. Vide the impugned judgment, Ashok Kumar Singhal was found not guilty of the offence of Section 138 of the Negotiable Instruments Act, 1881 (for short, the NI Act) and thus was acquitted by the court below. 4. The factual controversy involved in this appeal is that respondent Ashok Kumar Singhal borrowed ` 20,000/- in cash from the appellant Karamvir Giri (complainant) on 2 7.10.1994 in the presence of a witness Pramod, who has also been examined by the trial court. In lieu of the said money, Ashok Kumar Singhal gave a post-dated cheque of equal amount to the appellant. The said cheque dated 15.12.1994 was drawn on State Bank of Patiala, Civil Lines, Roorkee. The said cheque, when present before the bank by the complainant Karamvir Giri, was dishonoured on account of “insufficient fund” in the account of Mr. Ashok Kumar Singhal. The bank accordingly returned the said cheque unpaid to the complainant with the endorsement “insufficient fund”. Thereafter on 28.12.1994, the complainant sent a notice to the accused asking him to pay his money. That notice was duly received by the accused on 31.12.1994. But the accused did not make any payment within 15 days or even thereafter. Thereafter the instant complaint was filed on 30.1.1995 i.e. well within the period of limitation. 5. After recording the statements under Section 200 and 202 CrPC, the Magistrate took cognizance of the offence. The trial was conducted, which resulted in the acquittal of the accused respondent, as mentioned above. 6. Having heard the learned Counsel for the parties, it comes out that the cheque which was issued by Ashok Kumar Singhal to Karamvir Giri has been duly proved as Ex. Ka-1, and the memo of return of cheque by the bank indicating the insufficiency of fund in the account of Ashok Kumar Singhal has also been duly proved as Ex. Ka-2. But the learned trial court has discarded this material evidence just on the ground that these two documents have not sufficiently been proved. The trial court has expressed its view that no date was mentioned below the signature in the said memo of return of cheque by the bank and the signature has even not been 3 verified by producing the concerned bank Manager or any other officer of the bank. 7. The learned Counsel for the appellant has relied upon the relevant provisions of the Bankers’ Books Evidence Act, 1891. Sub-section (3) of Section 2 of the said Act defines the “bankers’ books” as under: “bankers’ books” include ledgers, day- books, cash-books, account-books and all other books used in the ordinary business of a bank whether kept in the written form or as printouts of data stored in a floppy, disc, tape or any other form of electro-magnetic data storage device” 8. The attention of this Court has also been drawn towards Clause (b) of Sub-section (8) of Section 2, which defines “certified copy” as under: “certified copy” means when the books of a bank,— consist of printouts of data stored in a floppy, disc, tape or any other electro-magnetic data storage device, a printout of such entry or a copy of such printout together with such statements certified in accordance with the provisions of section 2A.” 9. Here, the provisions contained under Section 4 of the said Act are also relevant to notice, which reads as under: “Mode of proof of entries in bankers’ books.—Subject to the provisions of this Act, a certified copy of any entry in a banker’s books shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, 4 transactions and accounts therein recorded in every case where, and to the same extent as, the original entry itself is now by law admissible, but not further or otherwise.” 10. On going through the intention of the legislature as envisaged in the aforementioned provisions, it is clear that any document issued by the bank in its ordinary course of business is not supposed to be proved in the court to make it a conclusive proof. It will be received as a prima facie evidence deeming the existence of such entry in the bank record and shall be admitted as evidence in the concerned matters. 11. In view of the above proposition of law, this Court is of the view that the learned trial court has acted erroneously by discarding the memo of return of cheque issued by the bank on account of lack of sufficient fund only on the ground that it has not been proved by deposing the evidence of the Manager or any other officer of the Bank before the trial court, and that it does not contain any date below the signature of the bank official. If the date has not been mentioned below the signature, then for this trivial lapse, the complainant cannot be made to suffer. Moreover, a glance on the said memo of the bank reveals that the date (15.12.94) has been mentioned on the top of the said memo and, therefore, it was not at all necessary to mention the date also below the signature. In any circumstances, the said omission cannot be said to be a catch by any stretch of imagination. 12. The version of the accused Ashok Kumar Singhal and his witness that the cheque was issued to Karamvir Giri in order to convince and assure him of payment of booking amount, had the deal of the land transaction been successful between Karamvir Giri and one Iqbal. This version of the 5 accused does not inspire confidence and the story appears to have been concocted just to evade the liability of the payment. 13. After dishonouring of the cheque, the notice was sent by Karamvir Giri will within the time as stipulated under the NI Act and that was received by the accused within three days. Even thereafter, no payment could be made by Ashok Kumar Singhal. Thereafter the complainant was filed, and the averments made therein, have not only been proved by the complainant but also by another eyewitness. 14. Therefore, in above view of the matter, the appeal has force and deserves to be allowed. The appeal is allowed accordingly. The impugned judgment and order passed by the trial court is hereby set aside. This Court is of the view that interest of justice will be served if the accused Ashok Kumar Singhal is sentenced with the imposition of fine only. Accordingly, a fine of rupees forty thousand is imposed on Ashok Kumar Singhal, which shall be deposited by him before the court below within one month from today, failing which he will undergo rigorous imprisonment for a period of six months. If the amount of fine is deposited, as ordered by this Court, the same shall be paid to the complainant forthwith. (Servesh Kumar Gupta, J.) 24.8.2011 Prabodh