IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Crl. Revision No. 2232 of 2011 (O&M) Date of decision: September 22, 2011 Zeeta Tigga .. Petitioner Vs. Satish Chauhan .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. J.S. Bedi, Advocate for the petitioner. A.N. Jindal, J Having been slapped with the sentence of one year and fine of `5000/- so also the compensation to the tune of `14 lacs to be paid to the complainant- respondent by the trial court, the petitioner challenged the same in appeal, but her appeal was also answered in negative by the court of learned Additional Sessions Judge, Sonipat, on 6.9.2011. Still dissatisfied, the petitioner has assailed the said judgment by way of this petition. The petitioner had acquaintance with the respondent through his son in law Ganesh Chauhan, as both of them were running a Maruti Service Station at Naraina, Delhi, therefore, the petitioner and her husband came in connection with him. The petitioner along with Ganesh Chauhan had started business of fishery in the area of village Khewra, District Sonipat by taking a farm of 20 acres on lease in February and March, 2007. They needed money and on the request of the petitioner, the respondent had given a loan of `25,65,000/- on interest @ 12% per annum for the said business. However, in order to discharge the said liability, the petitioner had issued two cheques i.e. No.545259 dated 15.3.2008 for a sum of `12,69,000/- and cheuqe No.545260 dated 15.4.2008 for a sum of `12,96,000/- to be encashed out of his account No.629704013229. Both the cheques which are involved in this case as well as in a connected case were presented to his banker i.e. Punjab National Bank Sonipat by the respondent, but these were returned unpaid on 22.7.2008 with the remarks “insufficient funds”. The petitioner was convicted separately qua the other cheque. Crl. Revision No. 2232 of 2011 (O&M) -2- In connection with present cheque, the bank had issued memo dated 22.7.2008 informing the respondent about the dishonour of the cheque, therefore, the respondent had to issue a registered notice on 29.7.2008, though it was received, but remained un-responded. After recording preliminary evidence, the petitioner was summoned in the court and notice of accusation was served upon him to which she pleaded not guilty and claimed trial. The respondent examined Rajesh Kumar Clerk (PW1) and he himself appeared in the witness box as PW-2. He also proved the cheque Ex.P1, memo Ex.P2, postal receipt Ex.P3, legal notice Ex.P4 and deposit receipt Ex.P5. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against her and pleaded her false implication in the case. In defence, she examined Ganesh Chauhan (DW1). The trial resulted into conviction. The appeal preferred by the petitioner was also dismissed. Arguments heard. Record perused. The main contention of the learned counsel for the petitioner is that, actually, she had not issued any cheque, but since she was partner in the business with Ganesh Chauhan (son in law of the respondent), therefore, he was having her signed cheques in his possession and he after taking the loan from the respondent and had given those cheques as security to him about which she came to know only after she had received notice. As such, she being not under any debt was not under any obligation to issue such cheques to the respondent, consequently she deserves benefit of doubt. Having given my thoughtful consideration to the aforesaid contention raised by the learned counsel for the petitioner, it is noticed that Rajesh Kumar Clerk (PW1) has proved the memo Ex.P2. The plea of the complainant has been further corroborated by the cheque Ex.P1, memo Ex.P2, postal receipt Ex.P3, notice Ex.P4 and deposit receipt Ex.P5. No cogent evidence has been led on record in order to establish the plea as set up by the accused. If Ganesh Chauhan himself had taken the loan then he being the son in law the question of furnishing security by him did not arise as he must be reposing confidence in his son in law. In any case, if Ganesh Crl. Revision No. 2232 of 2011 (O&M) -3- Chauhan had taken loan from himself then he could give cheque signed by himself and at the same could be furnished the security. Even otherwise, the petitioner admits her signatures on the cheque and no reply was sent to the statutory notice which she admits having received by her, therefore, the presumption cannot be said to be rebutted. Similar observations were made by the Apex Court in case Rangappa vs. Mohan 2010 (3) RCR (Crl. ) 164 wherein it was observed as under :- “...... Further more, the very fact that the accused had failed to reply to the statutory notice under Section 138 of the Act leads to the inference that there was merit in the complainant's version.....” The Apex Court in Rangappa's case (supra) further observed as under :- “.... Since the accused did admit that the signature on the cheque was his, the statutory presumption comes into play and the same has not been rebutted even with regard to the materials submitted by the complainant.” Even otherwise, the petitioner never raised any objection against Ganesh Chauhan for misusing her cheques. No such complaint or criminal proceedings have been proved on record which she may have initiated against Ganesh Chauhan for forging and misusing her cheques. Thus, the onus, does not stand shifted upon the complainant. Ganesh Chauhan also never represented or protested at any time earlier to his appearance in the court as DW-1 that her cheques were misused by the complainant as such the said plea could be termed as an after thought. Even otherwise, when once the cheque is issued, that will be presumed to have been issued for consideration and complainant by sufficient evidence has proved that the cheque was in discharge of legally enforceable liability but the burden to prove that the cheque had been misused is on the petitioner and no cogent evidence has been led by her for rebutting the said presumption. For the foregoing reasons, finding no merit in the petition the same is dismissed. September 22, 2011 (A.N. Jindal) deepak Judge