Crl.Rev No.960 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev No.960 of 2011 (O&M) Date of Decision: 6.09.2011 Harbhajan Singh Ahuja ...Petitioner Vs. Sukhdev Singh & Anr. ...Respondents BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest. --- Present: Mr.Sandeep S.Majithia, Advocate, for the petitioner. Mr.A.S.Manaise, Advocate, for respondent No.1. Mr.Baljinder Singh, Addl.A.G., Punjab., for respondent No.2. --- A.N.Jindal, J. This petition has arisen out of the judgment dated 20.04.2011 passed by the learned Additional Sessions Judge, Jalandhar dismissing the appeal against the judgment dated 29.05.2009 convicting and sentencing the accused/petitioner (herein Crl.Rev No.960 of 2011 2 referred as the petitioner) to undergo R.I. for one year and to pay a fine of Rs.2,000/- under section 138 of the Negotiable Instruments Act. The petitioner had raised a family loan of Rs.2,00,000/- from the complainant/respondent (herein referred as the respondent), and in order to discharge debt, the petitioner had issued a cheque No.071350 dated 13.8.2006 for a sum of Rs.2,00,000/- drawn on the Bank of Punjab Ltd. MGN Public School, Adarsh Nagar, Jalandhar out of his bank account No.2188. On tendering of the said cheque, it was returned with the remarks 'insufficient funds' vide memo dated 15.09.2006. Consequently, the accused/respondent was served with a legal notice dated 25.09.2006 which was not replied, hence the complaint was filed by him against the petitioner. After recording preliminary evidence, the petitioner was summoned and was issued notice of accusation which was contested by him. During trial, the complainant led oral as well as documentary evidence. When examined under section 313 Cr.PC, the petitioner denied all the incriminating circumstances appearing against him and pleaded his false implication. In his defence, he examined his son Bhupinder Singh (DW 1) in order to contend that his son had taken a loan of Rs.20,000/- and he had issued a blank cheque as security and loan was repaid but the cheque was not returned. The trial court while observing that Bhupinder Singh (DW 1) is not a truthful witness and his statement is not enough to shift the onus, Crl.Rev No.960 of 2011 3 convicted the petitioner. His appeal was also dismissed. The complainant/respondent while proving the receipt of loan raised by the petitioner has also proved issuance of cheque (Ex.C.1) by the petitioner. He has proved the memo dated 15.09.2006 which was received from the bank with the remarks 'insufficient funds' vide memo Ex..C.2. Besides proving notice Ex.C.3, he has also proved postal receipt Ex.C.4 and UPC Receipt Ex.C.5. The petitioner, on the other hand, has failed to rebut the presumption as envisaged under section 139 of the Act by leading any cogent and convincing evidence that the loan was not advanced to him and the cheque was not in discharge of any legally enforceable liability. To the contrary, his stand only is that he had signed the cheque when it was blank and it was by way of security against the loan taken by his son Bhupinder Singh, however, after the loan was repaid, cheque was not returned by the complainant to him. Both the courts below have returned findings of fact that the cheque was issued for discharging legally enforceable liability and he has failed to shift the onus. The judgment delivered by the Apex Court in case Krishna Janardhan Bhat Vs. Dattatraya G.Hege, 2008 (1) RCR (criminal) 695 as relied upon by the counsel for the petitioner is distinguishable and is not applicable to the facts of the present case. The arguments that the complainant does not state if he Crl.Rev No.960 of 2011 4 issued the cheque in his personal capacity or as proprietor of the business concern and that he did not produce the books of accounts, are of no consequence as neither any question was asked during the cross-examination to the respondent nor such documents were sought to be produced in the present case. I also do not find any merit in the contention raised by the learned counsel for the petitioner that the onus lay heavily upon the complainant to prove that the cheque was issued for legally enforceable liability. As presumption is attached to the fact that if the cheque was issued then it will be presumed that it was issued for consideration and in those circumstances, it was not necessary for the complainant to prove that there was some existing liability. It was observed in case M/s M.M.T.C. Ltd. & Anr. Vs. M/s Medchl Chemicals Pharma P.Ltd. & Anr. 2002 (1) Civil Court Cases, 13, as under:- “ There is, therefore, no requirement that the complainant must specifically allege in the complaint that there was a subsisting liability. The burden of proving that there is no existing debt or liability, was on the respondents. Thus they have to discharge in the trial. At this stage, merely on the basis of averments in the petition filed by them the High Court could not have concluded that there was no existing debt or liability.” This court merely on the basis of the pleadings in the revision cannot proceed to decide that it was not against such Crl.Rev No.960 of 2011 5 liability. Since the evidence has already been appreciated, therefore, now re-appreciation of evidence is not called for while exercising supervisory powers at this revisional stage, which are very restricted and limited at this stage. Both the courts below have returned concurrent findings of fact that the cheque was issued in discharge of his legally enforceable liability which was dishonoured. Signatures on the cheque have been admitted. Defence plea is contradictory. Interference could be made only if the judgment is based on mis-appreciation of evidence after ignoring some material evidence; misinterpretation of law and misreading of evidence or when the judgment is palpably wrong, perverse and suffers from manifest illegalities and infirmities. Law does not require re-appreciation of evidence at the revisional stage. It was observed by the Apex Court in the judgment delivered in Duli Chand Vs. Delhi Administration AIR 1975 SC 1960, that the High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to re-appreciate the evidence for the purpose of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. While further elaborating the scope of interference by the High Court in exercise of revisional jurisdiction in case of Vimal Singh Vs. Khuman Singh & Anr. (1998) 7 SCC 223, Hon'ble Crl.Rev No.960 of 2011 6 Supreme Court held that the interference by the High Court in exercise of revisional jurisdiction is limited to the exceptional cases viz. (i) when it is found that order under revision suffers from glaring illegality or has caused miscarriage of justice; (ii) When it is found that trial court has no jurisdiction to try the case; (iii) Where trial court has illegally shut out the evidence which otherwise ought to have been considered and (iv) Where material evidence which clinches the issue has been overlooked. (AIR 1962 SC 1788 relied). But on scrutiny of the impugned judgment, it transpires that the judgment does not suffer from any manifest illegality much less perversity warranting interference by this court. No merit. Dismissed. (A.N.Jindal) 6.09.2011 Judge rp