Whether reporters of local papers may be allowed to see the judgment? IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.110 of 2003. Dated of Decision: March 25, 2010. ------------------------------------------------------------------------------------------- M/s Jiwan Jyoti Deposits and Advances (P) Ltd. …… Appellant. Versus Pawan Kumar. …. Respondent. Coram The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. K.S. Banyal, Advocate. For the Respondent : Ms. Nidhi Chawla, Advocate vice, Mr. Anup Chitkara, Advocate. Surinder Singh, J (oral): In this appeal, the appellant has assailed the acquittal of the respondent, passed by the learned trial Court in Cr. Complaint No.51-I of 2001 / 18-III of 2002, decided on 21.11.2002, under Section 138 of the Negotiable Instruments Act. Heard and gone through the record. Precisely the case set-up by the appellant in the complaint can be summed up thus. Anand Gopal Bharti is the Managing Director of the Finance Company “M/s Jiwan Jyoti Deposits and Advances (P) Limited”, having its headquarter at Jiwan Jyoti Shoping Complex, 2 Mehre (Barsar) District Hamirpur, H.P. It is alleged that the respondent raised a loan, however, the amount of loan and the purpose is not mentioned in the complaint. But, there is only averred that in order to satisfy the loan amount, respondent issued two cheques bearing No.1208941 dated 15.12.2000 and No. 208942 dated 16.2.2001 of Kangra Central Cooperative Bank, Mehre (Barsar). These cheques were presented for encashment, it bounced back on 10th April, 2001 with the remarks “insufficient funds”. Thereafter, the appellant is stated to have sent the statutory notice on 23rd April, 2001, under the registered cover and also under the postal certificate. Since the amount of cheques was not returned, a complaint was filed before the learned trial Court under Section 138 of the Negotiable Instruments Act. After recording the preliminary evidence and finding reasonable grounds to proceed against the respondent, he was summoned for the said offence. Notice of Accusation was put to him on 4.3.2002, he denied the allegations. To substantiate its case, the Company examined CW1 aforesaid Anand Gopal Bharti, duly authorized to file a complaint and CW2 Surinder Singh, Junior Clerk of Kangra Central Cooperative Bank, Mehre. Respondent was also examined under Section 313 of the 3 Code of Criminal Procedure. He denied having taken the loan from the appellant and also denied issuance of cheques to satisfy the alleged loan liability. He specifically took up the stand that he was the driver of vehicle No.HP-21-0888, belonging to the Company and the appellant promised to transfer its ownership to him at the later stage and on that pretext, some signatures were obtained by them. At the end of the trial, respondent was acquitted by the learned trial Court, on the ground that the appellant testified that a loan agreement was prepared for the purchase of the truck by the respondent and a mention qua the hire purchase agreement was also made in the registration certificate, but neither the loan agreement nor copy of the registration certificate were produced to substantiate its case, which were admittedly in the possession of the appellant. Since the petitioner failed to prove loan liability, as such, an adverse inference was drawn and the respondent was acquitted. Shri K.S. Banyal, learned counsel for the appellant vehemently argued that it stands proved on record that the cheques were issued by the respondent and these were dishonoured because of insufficiency of funds. The statutory notice was issued. The presumption 4 is in favour of the holder of the cheques i.e. the appellant to which the respondent failed to rebut. I have examined the above argument. In this case the initial onus was on the petitioner to prove loan liability. The respondent did not admit it. CW1 Shri Anand Gopal Bharti, in clear and unambiguous terms stated that the amount was advanced for purchase of the truck by the respondent and an agreement was executed. The registration certificate of the truck contained the hypothecation clause duly endorsed thereon. The agreement and Registration Certificates both are in possession of the appellant. This material evidence did not find the light of the day during the trial of the case before the learned trial court nor these facts were mentioned in the complaint. It is not understood, as to why these important and material facts and documents were withheld by the appellant. The reason is obvious. The appellant had tried to hood wink the court and tried to foist a case on the respondent. The petitioner has failed to prove the loan liability as alleged. Thus, the statutory presumption, in my opinion cannot be drawn in favour of the appellant. The material documents withheld could have drawn light on the genuineness of the claim of the appellant. The case of the appellant itself lacks probity and in no way, in the above fact situation, the onus will shift on the accused-respondent when the claim 5 is held to be doubtful. Therefore, for the above reasons, I do not find any fault in the acquittal recorded by the learned trial Court. The appeal is without any merit, hence dismissed. The respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of the case. Send down the records. March 25, 2010. (Surinder Singh) (Pds) Judge.