CRM No. M-9170 of 2011 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-9170 of 2011 (O&M) Date of decision: 25.03.2011 Iqbal Singh ....Petitioner Versus Shamsher Singh Puri ....Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. Sandeep Arora, Advocate, for the petitioners. 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? ***** ALOK SINGH, J (ORAL) Present petition is filed by the accused assailing order dated 7.3.2011 passed by Sessions Judge, Jalandhar. Brief facts of the present case are that respondent/complainant has filed a complaint under Section 138 of the Negotiable Instruments Act against the petitioner contending that accused has taken a friendly loan to the tune of Rs.1,60,000/- for his personal needs with a promise to repay the same within a short period. In order to discharge his legal liability, accused had issued three cheques bearing No.052430 dated 19.7.2005 of an amount of Rs.50,000/- drawn on Union Bank of India, Chogati, Jalandhar, cheque No.089628 dated 23.7.2005 of Rs.50,000/- drawn on Union Bank of India, Chogati, Jalandhar and a cheque No.242900 dated 22.7.2005 of Rs.60,000/- drawn on State Bank of Bikaner and Jaipur. It is further contended that accused has assured that CRM No. M-9170 of 2011 (O&M) -2- at the time of presentation of cheques, same shall be honoured. It has further been contended that on presentation, cheques were dishonoured; thereafter statutory notice was issued and even after receiving of the statutory notice accused failed to make payment of loan amount. Before the trial Court, accused/petitioner has asserted that he has not taken any loan rather, in fact, complainant has invested some money in the business/chit fund of the father of the accused and complainant has taken blank cheques as security of the amount invested by the accused in the business of chit fund of the father of the accused. It is further contended by the accused that complainant has filled up the blank cheques without consent, knowledge and intimation to the accused. Learned trial Court has rejected the complaint having observed “In this case the accused has taken the defence that the complainant has invested his money for the business/Chit Fund of his father and he took his blank signed cheques as security and the complainant has misused the same and the perusal of the FIR No.67 Ex.DX shows that the accused has a business of disbursing loan on daily collection basis/Chit Fund transaction between him and the complainant. Thus there was a business transaction between him and the complainant and the accused's version is that nothing was due to the complainant towards him and complainant misused the blank cheque given as security and the complainant himself has admitted that the accused has given the blank cheque as security. Thus the accused has been able to discharge the onus placed on him. In case titled as M S Narayana Menon @ Mani Vs. State of Kerala 2006(3) RCR (Crl) 504, it is held that if the defence is acceptable as probable the cheque therefore CRM No. M-9170 of 2011 (O&M) -3- cannot be held to have been issued in discharge of debt, as for example if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act and it is also well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt and the accused in the present case has been able to discharge the onus placed on him. So the accused Iqbal Singh is acquitted of the charge leveled against him. File be consigned to record room”. Feeling aggrieved, complainant had filed appeal before the appellate Court. During the appeal, complainant/appellant had moved an application under Section 391 Cr.P.C. to allow the complainant to produce the evidence by summoning witnesses from Punjab National Bank, GT Road Jalandhar in order to prove the fact that complainant/appellant paid the loan amount involved in the complaint to the accused through cheques No.444999 dated 6.5.2004 for Rs.50,000/- and cheque No.533734 dated 16.8.2004 for Rs.50,000/- and cash Rs.60,000/- in December, 2004. Learned appellate Court has allowed the application moved by the complainant/appellant. I have heard learned counsel for the petitioner and have carefully perused the record, which is made available before me by the learned counsel for the petitioner. Learned counsel for the petitioner while placing reliance on the judgment of this Court in the case of Jai Singh Vs. Haryana Agro Industries Corpn. Ltd., Narnaul, 2006(3) RCR(Criminal) 936 has vehemently argued that complainant should not be given an opportunity CRM No. M-9170 of 2011 (O&M) -4- to fill up the lacuna. He has further argued that giving of opportunity to the complainant to summon the bank officials along with cheques would cause prejudice to the accused because accused would not be in a position to rebut the additional evidence sought to be produced at the appellate stage. I do not agree with the learned counsel for the petitioner for the simple reason that Sessions Judge, while allowing the application, has also observed that accused shall be having liberty to rebut the evidence sought to be produced by the complainant at the appellate stage. In the judgment of Jai Singh (supra), learned Single Judge of this Court, while placing reliance on the judgment of the Hon'ble Apex Court in the matter of Rajeshwar Parsad Misra Vs. The State of W.B. and another, AIR 1965 SC 1887, in paragraph No.3 has observed as under: - “3. On due consideration of rival submissions and from perusal of the records, it appears that the ratio of judgment of the Hon'ble Apex Court in the case of Rajeshwar Parshad Misra (supra) in para 15 lays down the principle that the provisions of Section 391 Cr.P.C. can be exercised only where there is a failure of justice. Moreover, such an exercise would be subject to the conditions namely : (i) it should be exercised sparingly and only in suitable cases and more particularly where it is justified; (ii) the exercise should not be done in such a way as to cause prejudice to the accused, which would appear as a disguise for a re-trial to change the nature of the case against him; (iii) the order may not ordinarily be made if the prosecution or any party had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise.” There is no doubt about the ratio of the judgment in the case of Jai Singh (supra) as well as in the case of Rajeshwar Parsad (supra). CRM No. M-9170 of 2011 (O&M) -5- The specific case of the complainant before the trial Court was that he has given friendly loan to the accused/petitioner while definite case taken by the accused/petitioner before the trial Court was that complainant has invested money in the company of the father of the accused, therefore, accused has issued cheques in security of the amount invested by the complainant in the company of the father of the accused. Learned trial Court did not believe the story of the complainant of giving loan to the accused/petitioner. To decide the lis between the parties, Court should make every endeavour by permitting both the parties to produce entire evidence in their possession. Now, the complainant wants to prove the cheques issued by the complainant and encashed by the accused/petitioner to show that he has extended loan to the accused/petitioner vide cheque No.444999 dated 6.5.2004 for Rs.50,000/- and cheque No.533734 dated 16.8.2004 for Rs.50,000/-. Evidence sought to be produced by the complainant, in the opinion of this Court, seems to be justified, which must be permitted and was rightly permitted by the appellate Court. No prejudice shall be caused to the petitioner by permitting the complainant to produce additional evidence in view of the fact that petitioner shall also be at liberty to lead his evidence in rebuttal. Moreover, from the judgment of learned Magistrate, it appears that during the cross examination of the complainant by the learned counsel for the accused, complainant has replied “It is correct that the whole amount was not given at the same time”. He has further explained that Rs.50,000/- - 50,000/- were given by cheques and Rs.60,000/- was given cash. CRM No. M-9170 of 2011 (O&M) -6- In the further opinion of this Court, in view of above statement of complainant during his cross examination, it cannot be said that now complainant wants to take new case, which was not stated during the trial. Petition is devoid of merit, hence is dismissed. (Alok Singh) Judge March 25, 2011 R.S.