Criminal Misc. No.562-MA of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.562-MA of 2007 Date of decision : 8.9.2008 M/s Pushvin Marketing & another ....Petitioners Versus M/s King Shoes & another ...Respondents CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.R.S.Bajaj, Advocate for the petitioners. Mr. Mohd. Yusuf, Advocate for the respondents. S. D. ANAND, J. The petitioners had lodged a prosecution under Section 138 of the Negotiable Instruments Act against the respondents-accused on an allegation that a cheque issued by respondent no.2 ( as a partner of respondent no.1), in lieu of an already existing debt, bounced on account of insufficiency of funds and the respondents did not pay up even after the service of a statutory notice in the context had been effected upon him. Learned Trial Magistrate noticed that though the respondent/accused had conceded his signatures on the impugned cheque, the petitioner/complainant had not been able to prove that the latter did actually owe any debt to him. In that context, the learned Trial Magistrate recorded the following facts:- “In the present case, presumption referred to above cannot be drawn in view of the authority referred by the accused of Hon'ble Apex Court as the complainant has failed to bring on the record account books showing any dealing with the accused and outstanding amount due towards the accused as Criminal Misc. No.562-MA of 2007 -2- alleged by the complainant. The computerised statement of account which has been placed on the record by the complainant, is not admissible in evidence as it does not contain the original record. Complainant has not brought the ledger or original bills of supply therefore, it is not established on the record that the cheque in question was issued in order to discharge the legal liability. Even though no evidence has been adduced by the accused to rebut the above referred presumption. The presumption goes away as the complainant failed to establish that there was any legal liability to be discharged by the accused. Rather, adverse inference is drawn against the complainant, as the complainant has not brought the ledger of record which was very much in his possession as is clear from the statement made by the complainant.” Learned counsel for the petitioners argues in favour of invalidation of the impugned finding by pointing out that the onus was upon the respondent/accused to disprove his liability, particularly when he had conceded his signature on the impugned cheque. It is further argued that production of computerised statement of account was sufficient to charge the respondent with accountability for the averred debt. The plea is resisted by the learned counsel for the respondents who points out that petitioner no. 2 M.C. Mehra had conceded that contents of cheque were not in the hand of respondent no.2. It was also argued that petitioner-complainant having averred to be in possession of evidence pertaining to the alleged pre-existing liability, had to be non- suited for want of evidence in support of the plea afore-mentioned. The plea on behalf of respondent/accused is legally Criminal Misc. No.562-MA of 2007 -3- acceptable. During the course of arguments, learned counsel for the respondents has shown to this Court a photo copy of the cross- examination directed at petitioner no. 2-M.C. Mehra on 21.11.2006. In the opening sentence thereof, that petitioner conceded that he is in possession of documented material to prove that the respondent had taken money from him. He also relied upon an averment made by M.C. Mehra to the effect that contents of cheque Ex. C1 are in the hand of his own son. Though he made an abortive attempt to retract that statement by averring that he has no idea about who had filled in the contents in cheque Ex. C1 but the fact remains that he has not specifically stated that the contents of cheque Ex. C1 had been filled in by respondent/accused himself. In view of the precise averment made by the petitioner- complainant (about his being in possession of documentary proof to prove the lending of amount to the respondent/accused) an adverse inference has to be drawn against him because he did not produce the averred documented material on record. He ought to have produced the ledger book which is maintained manually. In any case, he could have produced the record, even if computerised, bearing the signature of author/custodian thereof. A computerised statement, not bearing the signatures of author, cannot be said to be sufficient to hold that indicated person owned an amount to the other person. I find that the findings of fact recorded by the learned Trial Judge are relatable to the material obtaining on the file and there is nothing perverse in the appreciation of evidence by the learned Trial Judge. Dismissed. September 08, 2008 (S. D. ANAND) Pka JUDGE Criminal Misc. No.562-MA of 2007 -4-