IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 147 of 2001. Judgement reserved on: 2.6.2008. Date of decision: 4.6.2008. Sunil Kumar ….. Complainant- Appellant. Vs. M/s Mahajan Confectioners …. respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Sanjeev Kuthiala, Advocate. For the Respondent : Mr. Digvijay Singh, Advocate. Kuldip Singh, Judge. The complainant has come in appeal against the acquittal of respondent, under Section 138 of the Negotiable Instruments Act, 1881 (for short, the Act) in Complaint No. 73-I of 1995 vide judgement dated 19.12.2000 of the learned Chief Judicial Magistrate, Hamirpur. 2. The facts in brief are that appellant- complainant filed a complaint, under Section 138 of the Act against the respondent on the grounds that complainant had supplied empty bottles of cold drinks to respondent on 6.6.1995 on credit basis and the respondent had promised to make the payment of the cost of empty bottles of cold drinks to the complainant. The respondent issued cheque dated Whether the reporters of the local papers may be allowed to see the Judgment? …2… 29.7.1995 for Rs.43,500/- to the complainant towards the payment of cost of empty bottles of cold drinks. This cheque on presentation was dishonored. A notice was issued to the respondent but no reply was received, on these facts, the complainant had alleged that respondent committed an offence punishable under Section 138 of the Act. The learned Chief Judicial Magistrate summoned the respondent under Section 138 of the Act vide order dated 4.7.1996. The notice of accusation was put to the proprietor of respondent on 19.5.1998, under Section 138 of the Act to which he pleaded not guilty and claimed trial. The complainant himself appeared as PW 1. He has also examined CW 2 Rakesh Kumar Jain, CW 3 Ranjit Singh, CW 4 M.L. Chopra, Assistant Manager, CW 5 Rajesh Soni, advocate and PW 6 H.S. Negi, Manager, Indian Overseas Bank. The complainant has also produced cheque Ex. C 1, memo Ex. C 2, copy of notice Ex. CW 5/A, postal receipt and acknowledgements Ex. CW 5/B and Ex. PW 5/C. The statement of proprietor of respondent was recorded under Section 313 of the Code of Criminal Procedure, wherein he pleaded his innocence. Respondent has examined DW 1 Uma Sutam. The learned Chief Judicial Magistrate has acquitted the respondent vide judgement dated 19.12.2000, hence this appeal. 3. I have heard Mr. Sanjeev Kuthiala, learned counsel for the appellant, Mr. Digvijay Singh learned counsel for the respondent and gone through the record. Mr. Kuthiala, learned counsel for the appellant has submitted that the learned Chief Judicial Magistrate has not properly appreciated the material on record. He has contended that the cheque was issued by the respondent to the complainant in …3… lieu of supply of empty bottles of cold drinks worth Rs.43,500/-. The complainant was holder in due course of the cheque in which word `bearer’ was not struck off. The learned Chief Judicial Magistrate has erred in interpreting the words `not arranged for’ mentioned at Serial No. 7 of memo Ex. C 2. The learned counsel for the respondent has submitted that cheque was not issued by the respondent to complainant for discharge of any debt or liability. Therefore, there is no question of commission of offence under section 138 of the Act by the respondent. 4. In order to appreciate the respective contentions of learned counsel for the parties, relevant part of Section 138 of the Act is reproduced as follows:- “138 Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extent to twice the amount of the cheque, or with both: (a) ……….. ………. …….. (b) ……….. ………. …….. (c ) ………. ………. …….. …4… Explanation: For the purposes of this section, ‘debt or other liability” means a legally enforceable debt or other liability.” In the complaint, it has been alleged that complainant supplied empty bottles of cold drinks to respondent and respondent had issued cheque dated 29.7.1995 for Rs.43,500/- to the complainant towards the payment of cost of empty bottles of cold drinks. PW 1 Sunil Kumar has stated that he is a businessman and they have a family business. He supplied 510 crates of cold drinks empty bottles worth Rs.43,500/- to the respondent and in lieu thereof, the respondent issued a cheque Ex. C 1, which was bounced on presentation. In cross examination, he has stated that the bottles were supplied by their partnership firm, namely Jain Trading Company, of which he himself, Rakesh, Kanwar Sain Jain and Ashwani are the partners. The complaint was filed by him as partner of the firm. He has no authority on behalf of the firm to file the complaint. Ex. CW 5/A is notice dated 29.8.1995. This notice was issued by Rajesh Soni advocate, on the instructions of Sunil Kumar to the respondent. In the notice also it has been mentioned that empty bottles were supplied by Sunil Kumar for which a cheque amounting to Rs.43,500/- was issued by the respondent. 5. The perusal of statement of PW 1 Sunil Kumar, notice Ex. CW 5/A and complaint makes it clear that complaint has been filed on the grounds that empty bottles of cold drinks were supplied by the complainant Sunil Kumar to respondent. But Sunil Kumar while appearing as PW 1 has stated that empty bottles were supplied by …5… the firm Jain Trading Company of which he himself and three others were the partners. He has also stated that the complaint has been filed by him as partner of the firm. There is no whisper in the complaint that the empty bottles of cold drinks were supplied by Jain Trading Company and the complaint has been filed by Sunil Kumar as partner of the said firm or complainant is a partner of said firm. On the contrary in the complaint, it has been clearly stated that empty bottles were supplied by the complainant and cheque was also issued by the respondent to the complainant. Once the complainant has admitted that empty bottles of cold drinks were supplied by the firm and not by him, then under Section 138 of the Act the firm and its partners could enforce the liability against the respondent. The complainant has filed the complaint in his individual capacity and not as a partner of the firm nor the complaint has been filed by the firm through partner, therefore, simply because somehow cheque Ex. C 1 came in possession of the complainant, it cannot be said that cheque was issued by the respondent in order to discharge any debt or liability of the complainant. The complaint suffers from legal defect, it has not been instituted by or on behalf of the person who could enforce the liability against the respondent. Hence the complaint filed by the complainant was not maintainable and this ground is sufficient to maintain the impugned judgement. 6. In addition to the defect in the complaint, the notice of accusation which was put to respondent is as follows:- “There are allegations against you in the private complaint that you issued a self drawn or bearer cheque No. 234164 dated 29.7.1995 for Rs.43500/- drawn on Indian …6… Overseas Bank, Sundernagar which on its presentation was dishonoured for want of sufficient funds and thereby committed an offence punishable under section 138 of Negotiable Instrument Act and within my cognizance. And I hereby call upon you to plead guilty or make any defence.” In the notice of accusation, it has not been put to the respondent that the cheque in question was issued in favour of the complainant and it was dishonoured on its presentation by the complainant. Thus notice of accusation put to the respondent was also defective. 7. The learned counsel for the appellant has submitted that appellant was holder in due course of the cheque. He has also submitted that the cheque was bounced on the ground `not arranged for’ as mentioned in memo Ex. C 2, but these facts have not been properly appreciated by the learned Chief Judicial Magistrate. He has also submitted that there is presumption in favour of holder of a cheque for discharge in whole or any part of any debt or other liability under Section 139 of the Act. He has relied Mahesh Goyal vs. S.K. Sharma 1997 Crl. L.J. 2868, K. Bhaskaran v. Sankaran Vaidhyan Balan and another AIR 1999 SC 3762 and M/s Modi Cements Ltd., vs. Kuchil Kumar Nandi AIR 1998 SC 1057. 8. The Section 9 of the Act defines `holder in due course’, which means any person who for consideration became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable, and without having sufficient cause to believe that any defect existed in the title of the …7… person from whom he derived his title. The presumption under Section 139 of the Act is rebutable, which has been rebutted by the evidence led by the complainant himself. He has failed to prove that he became possessor of the cheque for consideration. He has stated that cheque was issued to him by the respondent, but he has also stated that empty bottles of cold drinks were supplied by firm Jain Trading Company to the respondent. It is not the case of the complainant that cheque was given to him by the respondent as a partner of said firm. Thus taken from any angle, the complainant is not `holder in due course’ of cheque Ex. C 1. In Mahesh Goyal’s (supra), the facts were that petitioner had borrowed Rs.6200/- from the respondent. In discharge of the debt, the petitioner issued a cheque dated 1.6.94 drawn on Indian Overseas Bank. The defence of the petitioner was that Section 138 of the Act is not attracted as it was self drawn cheque. On those facts, it was held that respondent was holder in due course. In the present case, the facts are entirely different. The complainant on facts has failed to prove that he supplied empty bottles of cold drinks to respondent, rather he led evidence that such bottles were supplied by firm Jain Trading Company. Hence, Mahesh Goyal’s case is not applicable in the present case. 9. In K. Bhaskaran’s case (supra), the Hon’ble Supreme Court has held that once the cheque is issued by the drawer a presumption under Section 139 of holder must follow. There is no dispute that there is presumption under Section 139 of the Act that cheque was issued to discharge in whole or any part of any debt or …8… other liability. The complainant himself has rebutted this presumption by proving that empty bottles of cold drinks were supplied by Jain Trading Company and not by him to the respondent. This being the position, the presumption under Section 139 stands rebutted. Hence, the appellant cannot take any advantage from K. Bhaskaran’s (supra). In M/s Modi’s case (supra), the Hon’ble Supreme Court has held that presumption under Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the court to presume that the holder of the cheque received it for the discharge of any debt or liability. The burden is on the accused to rebut the aforesaid presumption. In the present case, this burden of the respondent has been discharged by the complainant himself when he clearly unequivocally in his statement in the court has stated that the articles were supplied by Jain Trading Company. There is not a word in the complaint that complainant is a partner of Jain Trading Company and the complaint was filed on behalf of Jain Trading Company or by the complain ant as partner of Jain Trading Company. In fact, in the complaint, it has been stated that empty bottles of cold drinks were supplied by the complainant to the respondent but in evidence completely a new case has been projected by the complainant himself and none-else. Thus M/s Modi’s case supra is also not applicable to the facts and circumstances of the present case. 10. The learned counsel for the appellant has submitted that words `not arranged for’ mentioned in memo Ex. C 2 have not been …9… appreciated by the learned Chief Judicial Magistrate properly while acquitting the respondent. The impugned judgement for the reasons stated above is upheld, therefore, this court need not to go into the question of alleged misinterpretation of words `not arranged for’ by the court below. The appellant has failed to make out any case for interference. 11. No other point was urged. 12. As a result of above discussion, the appeal fails and is accordingly dismissed. The bail bonds of the respondent stand discharged. June 4, 2008. ( Kuldip Singh ) (Hem) Judge.