Crl. Revision No. 499 of 2009 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 499 of 2009 Date of Decision: February 28, 2011 Krishan Kumar ---Petitioner versus Bishan Sarup and another ---Respondents Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Sameer Sachdeva, Advocate, for the petitioner Mr.Rajesh Narang, Advocate, for respondents No. 1 and 2 *** GURDEV SINGH, J. Complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “the Act”) was filed by V.G.Leasing and Finance Private Limited, Muktsar, and its Manager, Bishan Sarup against Krishan Kumar, petitioner-accused. They came up with the plea that the complainant-company is a registered private limited company and is doing the business of hire purchasing, money lending and financing and is keeping the accounts in regular course of business. The accused took a loan of `1,00,000/- Crl. Revision No. 499 of 2009 -2- on 12.9.2000, vide cheque No. 554508 and agreed to pay the interest on that amount at the rate of 2% per annum.To discharge that liability,he issued cheque No. 889363 for a sum of ` 1,18,000/- on 12.6.2001, drawn on State Bank of India, Muktsar, as full and final payment of the loan so borrowed by him. When the cheque was presented for encashment, the same was returned along with Memo dated 12.6.2001 on account of 'insufficient funds' in the account of the accused. In spite of issuance of registered notice dated 18.6.2001, he failed to pay that amount. In support of the contentions made in the complaint, the complainant produced preliminary evidence in the form of his own statement as CW-1 and Rajpal Singh, CW-2. From that evidence, Chief Judicial Magistrate, Muktsar, found sufficient grounds for proceeding against the accused under Section 138 of the Act and he was summoned accordingly. On his appearance, notice of that offence was given to him, to which he pleaded not guilty and claimed trial. To prove his guilt, complainant examined Resham Singh, CW-1, O.P.Taneja, CW-2, Sita Ram, CW-3. After the complainant closed his evidence, the accused was examined by the trial court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the evidence of the complainant, were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He came up with the plea that he never took any loan and never issued any cheque. He was called upon to enter on his defence but he did not produce any evidence. After going through the evidence so produced on the record and hearing counsel for the parties, Chief Judicial Magistrate, Muktsar, convicted the accused for the offence under Section 138 of the Act, vide judgment dated 18.3.2008 and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of ` 10,000/- and in default thereof to further undergo Crl. Revision No. 499 of 2009 -3- rigorous imprisonment for a period of three months. The accused preferred an appeal against that conviction and sentence, which was dismissed by Additional Sessions Judge, Muktsar, vide order dated 20.1.2009. Now, the present revision has been preferred by him against that conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by counsel for the accused that as per the evidence produced by the complainant, it is a company dealing in finance etc. It cannot be believed that such a company will advance a sum of ` 1,00,000/- without getting any document executed from the accused. That itself is a ground for disbelieving the version of the complainant. In fact, the cheque in question was given by the accused to the complainant in respect of the Committees and it was never issued in discharge of any such previous debt or liability. Therefore, it cannot be said that any such offence under Section 138 of the Act was committed by the accused and he is entitled to acquittal. On the other hand, it has been submitted by counsel for the complainant that the loan was advanced to the accused by means of a cheque and mere omission on the part of the complainant to get the documents of loan executed from him, cannot be made a ground for disbelieving his version. Categorical statement was made by Sita Ram, CW-3, who is an Accountant of the complainant-company that a sum of ` 1,00,000/- was financed to the accused as loan by means of a cheque, the photo copy of which is Ex. C-18 and that after including the interest of ` 18,000/- at the rate of 2% per annum, the accused had issued the cheque in question. That witness was never cross examined by the accused; meaning thereby, he admitted his statement. In addition to that presumption is also in favour of the complainant that the cheque was issued in discharge of the previous liability, by virtue of Sections Crl. Revision No. 499 of 2009 -4- 118 and 139 of the Act. There is no ground for upsetting the well reasoned findings recorded by the trial court and upheld by the appellate court. There is no such requirement of law that every loan advanced by leasing and financing company must be witnessed by written documents. The loan can be oral one and the court is only to appreciate the evidence produced by the complainant for proving the factum of loan and even that will amount to re-appreciation of the evidence, which is not permissible while exercising the revisional jurisdiction. The scope in this revision is very limited one and the court can re-appreciate and re-appraise the evidence in case it comes to the conclusion that the findings recorded by the trial court and upheld by the appellate court are perverse or illegal or based on no evidence or misreading of evidence. There is unchallenged statement of Sita Ram, CW-3, who is working as Accountant in the complainant company. He categorically stated that the accused borrowed a sum of ` 1,00,000/- from this company for which the cheque was issued to him and thereafter, he had repaid that loan amount by means of a cheque in dispute which was for a sum of ` 1,18,000/- which included the interest of 18% calculated at the rate of 2% per annum. He also stated that the accused had put his signatures on the cheque in his presence. Regarding the issuance of cheque by the accused., the statement of this witness is further corroborated by the Statement of Bishan Sarup CW-1. It was not disputed at the time of arguments that this cheque on presentation to the banker of the accused, was dishonoured on account of insufficient funds in his account and that after the receipt of memo of dishonour, the statutory notice was given to the accused and he failed to make the payment of the amount of that cheque. The controversy raised in the present revision is only as to whether it stands proved on the record that the cheque in question was issued in discharge of the previous debt. In view of the unchallenged statement of Sita Ram, CW-3, that Crl. Revision No. 499 of 2009 -5- question is to be answered in favour of the complainant. In addition to that there is presumption also, by virtue of Section 139 of the Act, in favour of the complainant that cheque was issued in discharge of the previous debt. The evidence produced by the complainant cannot be disbelieved only on the ground that no documents were got executed from the accused at the time of advancement of loan. In addition to the oral evidence, the complainant also proved on record the attested copies of the Account Books which are being maintained by him in the due course of business. The entries contained in those Accounts Books are relevant under Section 34 of the Evidence Act. The amount so advanced to the accused was duly entered into the Accounts Books and at the time of audit of the accounts of this company, it was brought to the notice of the Auditor that sum of ` 1,00,000/- had been advanced to the accused. The entries in the Accounts Books may not be sufficient to charge the accused with the liability but coupled with the other evidence produced on the record, those go to show that he was advanced a sum of ` 1,00,000/- as loan and it was in discharge of that debt that he had issued cheque in question. There is no ground for coming to the conclusion that the findings recorded to that effect by the trial court are perverse or illegal or is based on misreading of evidence. The finding of conviction so recorded by the trial court and upheld by the appellate court is upheld. Faced with that situation, it was submitted by counsel for the accused that accused had already undergone sentence of imprisonment for a period of four months and sentence of imprisonment so imposed upon him be reduced to the period already undergone. This court would have considered that plea of the accused if he had shown his bona fide intention to pay the amount of the cheque to the complainant. At no stage he came out with such an Crl. Revision No. 499 of 2009 -6- offer. I do not find any ground to reduce the sentence of imprisonment so imposed upon the accused to the period undergone by him. Revision petition is dismissed accordingly. (GURDEV SINGH) JUDGE February 28, 2011 PARAMJIT