Crim iilal v. OeeePet it ioner

53 0 1 Crim iilal Revision No1028 of2009 1 0 1 1 0 C X C5 Z Z r Z 08 Z I N TliE HlGllOURT OF PUNJAB AND HARYANA AT CHANDI GARH Crim inal Rcvision No1028 of2009 041122010 Dat eofDecision 1 lrlt lchan Sinsh Slalc 01 Punj aband anot ller VERSUS OeeePet it ioner ClORAM I I ONBLE MR JUSTI CE AlVJI NDAL Prescnl lvlrTSanghaSenior Advocat e wit h MrSSallghaAdvocat e for t hepellt ioner Msahecsh PallwaDudej aAdvocale 10r N02 888842 A1Jl N DAL JORAT I This revision pet illonis direct d againstl1le dat t d 262009 by Addilit lilal Scssions Judge Fast 9rack Court Ludlliana t he appeal byt he Olerein referrcd as againstt he j udgm enldat ed 23Ol007 llirll undei Seclioll 138 of I hc I nst rum ent sAct and lo undergorigorous for a periodof 1Y year t o pay a fine ofRs0001 A offact sist hat lhe No2 llercit lrefcrred as lllc rcslondentand t he pet it ionerare lhe relat ives The pct lt loncrhad t he in t he m ont h ofAt lgust2003 and her for som e 8nancial help 111 connect ion wit h business Thc beiilga closc relat ive agreedlo t lle sam e and advanccclhirn a sunl uf I 2s650001 on ccount of I oant o t he pet it ioneron llleassurancc lhat he will repay lhe I oan on receiptof t hepaynlelltfrom t he m arkcl wilhin shorl span of iim c I n t he vear 2004 t he app8Chcdt hcpcllit ioncrwilh a rcquestt o ret urn her t hc loan but 8gainsoughtSlX llm e Afler lhe expiryof said SlX Um a 11: 39 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI t he 2016.03.28 16:21 I attest to the accuracy and integrity of this document 0 54 e Crim inal Revision Noe1028of2009 2 m ont hs t he t he pet it ionerbut he st art ed t he m at t er on one pret extor t he ot her Ult im at elyin order t o his legallyenforcem entliallilit y t he pet it ionerissueda cheque No05132 F dat ed O062005for Rs565000I rawn on UCO I 3ankBranch Khanna oul of his account No545 On of t he said chequefor encashm ent t hroughher banker ie Jam m u Kashm ir Bank Branch Khanna t hc said chequewas receivedback dishonouredvide m em odat ed 02062005 from UCO 13ankKhanna wit h t he rem arks funds insufflcient Aft er issuinglegal not lce dat ed 14062005 upon t he t hc prcsentcom plaintwas 81ed A I ler recordillgt hc evidence processwas issued againstt he pet it ionerUponservice t he not ice of accusat lon issued t o which he denied andopt cdt o cont est t o subst anliat e lhe charges t he cxainined herselfasCWl Chainan Lal ManagerofJam m u 8 m 0 C 0 Z L I 08 W2 Z Kashm ir Bank CW29Gurj eetSinghrecord inchargcUCO Bank 0CW39 andcloscd hcr evidence When exam ined t inder Scct ion 313 CrPC t he accuseddenied all t he circunlst ancesappearingagainsthim false im plicat ionHe filrt her explalnedt hal his fat her had obt ainedRs500001 as loan from t he in t he year 2005 Al I hat t inlc a blanksignedchequewas delnandedloyt he Thcreaft crt he said chcqueWas fahricat edbyent ering t he hugeam ount defencet he pet it ionerexam inedGurm ail SinghTaxat ion Clerk DWll and his fat herDW21 On scrut inyof t he evidence t he accused was convict ed andsent encedaccordinglyHis appealwas also dism issed Theprim eposer putt o t his Court byt he leam ed counsel for t he JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document Um a 11: 39 Scanned True Copy of Original PHHC,Chandigarh 55 4 t d Crim inal Revision Noe1028of2009 3 is t hal t he has failed t o shift t he onus wit h regardt o issuancc t he chequein her lavour againstany legallyenforceable liabililll As such ll ls a case 01lnisulilisat ion of lhe chequewhich was issued byhis fat her againsta loan of Rs500001 which he had received fronl t he lransact iolls The alld isrelat ed t ot he pet it ionerMoney bet wccnlhc pct it ionerand t he st ands adm it t ed However case oft he pet it ioneris t hathis fat her Balbir Singhhad receiveda lclan of Rs500001 whereas accordingt o t he t hat shows againslt he paym entof loan of Rs50001 As regardst he advancem entof loan t he respondcnlhas led sufficient evidence t o prove t hat t he am ount wasadvanced t o t he pet it ionerShe was crossaexam inedat lengt hOll t his point and she cxplainedt hat she had t aken a sum of RsA500001 as loan againstt he FDR and she had received a sum of Rs50001 from her m ot her and had advancedt he am ounl ofRs650001 t hepelit ionerWit h regardt o t he source of incom e she has dulyst at ed t hat hcr husbandhad gone t o Germ anyand had broughtm oney from t here But t o t hecont raryt he pet it ionerhas neit her led any evidence nor proved fact wit h regardt o t he issuance of t he chcqueagainstt he loan of 1 C 0 0 C0 I Z t r 06 7 Z Q 1 4 nolcxam ine but lo t alk him selfin t hewit ness box he even did any wit ncss t o prove t hepleaas set up byhim Adm it t edlyt he bearst he signaluresof t he pct it ionerat t hreeplaceswhich indicat es t hat t hc chequewas isst ied byt he pelit ionert o discharget he enforceableliabilit y Thought he ret urns for t heyear 200304 2004e 05 2005006 and 20064Y7 wcre producedon record by Gurm ail Singh t o ExD4 bt lt t hcse ret urns do ilot helpt he case of t he JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document DW l l as ExOl Um a 11: 39 Scanned True Copy of Original PHHC,Chandigarh 56 4 Crim inal Revision ATo1028of2009 4 pet it ionerNo ent ryshowinglhe deliveryofchequebyt he pet ilionert o t he Onds m ent ioned in t he rct urns Thus t he chequecannot be t erm edas havingbeen givenfor securit ypurposes as aft er t he receiptof loan lhe issuanceof t he chequecan well be presum edt o be in dischargeof legaliyenforceablcliabilit y Unless t he accusedfails t o prove t he ret urn of t hc I oanam ount t he chequecannot be t erm edt o be m ere securit yin t he said loan t ransact ion Thought he pet it ionerhas st at ed t hat it was a blank chcqueand it was not fllled byhim but t hat would not im portt he fact um of forgeryand t he fillingoft he saine cannot be at t ribuledt o t he I t was observed by t he Apex Court case Survalakshm i Cot t on Mills Lim it ed versus Raivir I ndust ries Lim it ed and ot hers 2008 111RCR Crim inall 652 t hat fillingup of t he blanks in a chequeby it self would not am OUllt t o forgcryThus for a I it t le whilc if it assurnedt hat t hought here are no reason lhat t he blanks in t he disput edchequeswere fllled up lat eron t hiscircum st anccin it selfwould not am ount t o forgery Now com inglo t he quest ionof in favour of t he holder il would be t o relt erat e Sect ion 139 of t he Negot iable I nst rum cnt sAcl as uildcrl 0 C C5 I Z I 08 m Z I l Presum pt ion in favour of holder I t shall be unless t he cont rary is prove4lhat t he holder of a cheque l receivedlhe chequeof t he nat ure referred t o in Sect ion 138 for t he dischargein whole or 111par4of any debt or ot her I iabilit y Thus t be aloresaid provisionif barely t hen it would 0110ulhal t herc is a I egaipresum plont hat t he chequewas issucd Um a 11: 39 Scanned True Copy of Original PHHC,Chandigarh an ant ecedcnlliabilit y alld t he JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document could be 57 8 Crim inalRevision Nt 1028 of2009 5 rebut t edonlybyt he person who drew t he cheque 1S in favour of t he holder of t he chequeI t was observedin case KI George versus Muham m ed Mast er 19991 97 Com panv Cases 664 t hat available under Sect ion 139 of t he I nst rum ent sAct can bc rebult ed byt he accused by adducingevidence Sot he burdenof proofis on t he accused and t he evidence availableoi record will have t o be bybearingin m ind lhe above fact regardingburdenofproof While t akingt he fact s oft he presentcase it is not icedt hat t he had not adduced even a singlewit nessoperat ingas rebut t alt o t he arisen under Sect ion 139 PC whereast he has 1ed sufllcicnt evidcncc t 0 hold t hat t he pct it ionerwas t o pay lhe loan against which he hadissued a chequeThe balled pleaas set up bylhe accusedhas not been draw lhe t he said by t he clear evidence t hus it would be sufficientt o t hat t he chequewas issuedin dischargeof debt and had gone unrebut t edfor want of evidence on t he rccord No ot her argum enthas been advanced As regardst he quant umof sent ence it m ay be observedt hatt he issued a chequeon Ol162005 and even t ill t odaynot hinghas bccnpaidby him t o t he and is st ill cont est ingt he false plea beforebot h t he Court s below The t rial Courtappcarst o have awardedlessersent ence t han what he deserved flndingno m erit in t he pet it iont he sam e m r 0 C I C5 Z I 08 7 Z dism isscd 042010 t luim t a4i Um a 11: 39 Scanned True Copy of Original PHHC,Chandigarh 10 1 J t J4 ANJindall Judge JOYTI RANI 2016.03.28 16:21 I attest to the accuracy and integrity of this document