Uttam Ram vs Devinder Singh Hudan

3. The appellant owns apple orchard in District Kullu, Himachal Pradesh. The appellant also used to supply apple cartons, trays and other packing materials to other apple growers on cash and credit basis. He also owns commercial ropeway which connects various other apple orchards with the roadhead as a facility to the growers to carry their produce from the orchards to the market.

4. In the year 2011, respondent No. 1 purchased apple crops of various growers which was carried out through ropeway to the roadhead for further transportation. The packing material was procured by the respondent on credit basis from the appellant through his authorised agent Prem Chand son of Kumat Ram. In the month of September 2011, the accounts were finally settled between the appellant and the authorised agent of respondent No. 1 and a sum of Rs.5,38,856/- was found recoverable. A cheque No. 942816 dated 2.10.2011 was issued for the said amount, but the said cheque was returned by the bank on 11.10.2011 on presentation with the endorsement “insufficient funds”.

5. The appellant thereafter served a legal notice on 27.10.2011 under registered cover sent to the official and home addresses of respondent No. 1. But, in spite of receipt of the notice of 27.10.2011, no payment was made which led to filing of a complaint by the appellant.

6. The appellant in his complaint stated that total amount of 3 Rs.7,86,300/- was found payable on account of bags, gunny bags and packing materials and after adjusting the payment of Rs. 2,47,444/-, an amount of Rs. 5,38,856/- was found to be payable to the appellant. The appellant has asserted that the said cheque No. 942816 dated 2.10.2011 was issued by the respondent.

7. In support of the complaint, apart from producing CW1 Dhiraj Kumar who produced the bank record of dishonour of cheque, the appellant examined himself as CW2 and also produced Prem Chand son of Kumat Ram, the agent of respondent as CW3. The respondent did not appear in witness box but examined Head Constable Ranjit Singh DW1.

10. CW3 Prem Chand deposed that the respondent purchased, on contract, apple in their area from apple growers including from the appellant for further sending them to Shimla, Chandigarh and Delhi. He deposed that appellant had to recover an amount of Rs.7,86,300/- and after adjustment of Rs.2,47,444/- the balance amount was payable by the respondent for which the settlement was arrived at in his presence when cheque No. 942816 was issued for a sum of Rs.5,38,856/- dated 2.10.2011.

26. In view of the judgments reported to above, we find that the respondent has not rebutted the presumption of consideration in issuing the cheque on 2.10.2011 inter alia for the following reasons:

34. Consequently, the present appeal is allowed, order passed by the High Court is set aside. The respondent is held guilty of dishonour 12 (2014) 2 SCC 236 18 of cheque for an offence under Section 138 of the Act. The respondent shall pay Rs.10,77,712/- as fine i.e. twice of the amount of cheque of Rs.5,38,856/- and a cost of litigation of Rs.1,00,000/- within three months. If the amount of fine and the costs are not paid within three months, the respondent shall undergo imprisonment for a period of six months.

OCTOBER 17, 2019.