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____________________________________________________ vs Jai Singh on 29 May, 2018

IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA

Criminal Appeal No. 259 of 2014
Reserved on: 07th May, 2018

.

Date of judgment: 29.05.2018

_
Himachali Devi …..Appellant

Versus
Jai Singh …..Respondent

Coram:

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

1

Whether approved for reporting? No.

For the appellant: Mr. Praneet Gupta, Advocate.

For the respondent: Mr. Surinder Verma, Advocate.

Chander Bhusan Barowalia, Judge

The present criminal appeal, under Section 378 of

the Code of Criminal Procedure, is maintained by the

appellant/complainant (hereinafter to be called as “the

complainant”), against the order dated 28.8.2009,

passed by learned Judicial Magistrate, Ist Class, Court

No.2, Mandi, H.P. in Private Complaint No.226-

I/2008/2007, whereby the complaint, under Section 138

of the Negotiable Instruments Act (hereinafter to be
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.

29/05/2018 23:03:43 :::HCHP
2

called as the “N.I. Act”) filed by the complainant has

been dismissed.

2. The key facts, giving rise to the present

.

appeal are that the complainant filed a complaint

against the respondent/accused (hereinafter to be

called as “the respondent/accused”) under Section 138

of the N.I. Act, wherein she alleged that the accused

issued a post dated cheque bearing No.SFT114626,

dated 15.6.2007 (Ex.CW1/A) of Rs.3,00,000/- to the

complainant, which the complainant presented in

Himachal Gramin Bank, Hatgarh Branch, Tehsil Sadar,

District Mandi, H.P. and the banker of the complainant

Himachal Gramin Bank, Hatgarh Branch sent the

cheque for collection to Punjab National Bank Branch,

Sundernagar, however, the same was returned unpaid

on account of “payment stopped by the drawer” which

intimation was given by Himachal Gramin Bank,

Hatgarh Branch to the complainant on 20.6.2007.

Thereafter, the complainant requested the accused

telephonically with regard to dishonoring the cheque,

but he/accused did not care at all and did not pay the

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3

amount. Thereafter, the complainant issued a notice,

dated 22.06.2007 and the accused replied for the

.

same. Though, no payment of amount covered by the

cheque is made. Therefore, the complainant filed a

complaint in the Court of learned Judicial Magistrate, Ist

Class, Court No.2, Mandi, H.P. on 23.07.2007.

3. The learned Trial Court after recording the

preliminary evidence, summoned the accused and

directed to furnish personal and surety bonds, which he

had furnished.

4. The learned Trial Court after recording the

statement of the accused under Section 313 Cr.P.C.,

acquitted the accused, hence, the present appeal.

5. The appellant also filed an appeal, i.e.

Criminal Appeal No.70/2009 against the judgment of

acquittal dated 28.8.2009, passed by the learned

Judicial Magistrate, Ist, Class, Court No.2, Mandi, H.P.

before the learned Additional Sessions Judge(II), Mandi,

District Mandi, H.P., who also vide judgment dated

28.3.2014, dismissed the appeal against acquittal.

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4

6. I have heard the learned counsel for the

parties and gone through the record carefully.

7. Learned counsel for the appellant has

.

argued that the Court below without appreciating the

fact that the cheque has been issued for consideration,

dismissed the appeal. He has further argued that the

consideration in this case was the payment of

maintenance to the wife (complainant), as she was the

nominee in the service record and without there being

signatures and other formalities to be completed by the

appellant, the money could not have been paid to the

respondent at the time of retirement and so for this

purpose, the accused made a payment of Rs.3,00,000/-

to the wife (complainant) and the cheque was paid for

consideration i.e. being wife of the accused.

8. On the other hand, learned counsel

appearing for the respondent/accused, has argued that

the cheque was without consideration as the

complainant has not entered into a compromise that

she has received Rs.3,00,000/- as full and final

payment of her maintenance and towards all liabilities

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5

of the accused. So, the encashment of the cheque was

withheld.

9. In rebuttal, the learned counsel for the

.

appellant has argued that the Court below has

committed grave illegality and so the appeal be

allowed and the accused be convicted.

10. To appreciate the arguments adduced by the

learned counsel for the parties, I have gone through

the record in detail.

11. to
In order to substantiate her case, the

complainant examined as many as three witnesses.

12. CW.1, Ranjeet Singh Salwani proved that

Cheque, Ext.CW1/A was sent to Punjab National Bank,

Sundernagar for collection on 15.06.2007, vide memo

Ext.CW.1/B, but the same was returned unpaid

according to memo Ext.CW.1/C of Punjab National Bank

on the ground that payment is stopped by the drawer.

13. CW.2, Nirmal Singh from the Punjab National

Bank, Sundernagar, has also proved that the cheque in

question was received for collection, but the same was

not honoured, because the payment was stopped by

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6

the drawer, who is the accused in the present case.

14. The complainant also appeared as CW.3 and

deposed that the accused has given her a cheque of

.

Rs.3,00,000/- Ext.CW.1/A. She further deposed that the

cheque was deposited for collection by her in Himachal

Gramin Bank, Hatgarh Branch, from where, it was sent

to Punjab National Bank, Sundernagar, but it was

returned unpaid. She also issued a legal notice,

Ext.CW.1/E to the accused, which was replied by the

accused vide Ext.CW.1/G. In cross-examination, she

admitted that the accused is her husband and cases

are pending. She further admitted that an amount of

Rs.1,000/- was allowed by the Court in her favour as

monthly maintenance, which was being paid to her

regularly. It has been stated that the accused had also

filed an appeal against the order of maintenance and a

divorce petition against the complainant. She has

further stated that she is not residing with the accused

(Jai Singh) for the last about 20-25 years. She has

further deposed that the accused has contracted

second marriage and has six children and also that the

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7

cheque was given to her as maintenance. She has also

deposed that the accused was to retire from his job and

she demanded amount and her husband told her that

.

he will give some maintenance to her. She also

admitted that the litigation is going on in between her

and her husband/accused for the last 20 years. She

denied the suggestion that the accused has told in the

presence of one Inder Singh that the complainant

should take Rs.3,00,000/- and to give divorce to him.

She also denied that she has also told to withdraw the

maintenance suit after receiving Rs.3,00,000/-. The

complainant further denied that when she refused to

take Rs.3,00,000/- as lump-sum, the accused got the

payment stopped. She further denied that the cheque

was given by her husband/accused for full and final

settlement of maintenance. She denied that when she

did not agree for divorce, accused got the payment

stopped.

15. The accused when examined under Section

313 Cr.P.C., has maintained that the complainant told

to settle the matter and asked him to give cheque

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8

and divorce will be there. The accused has stated that

the complainant, however, did not enter into

compromise therefore, the accused stopped the

.

payment.

16. The accused examined one Suresh Kumar

Sharma, who was from the Punjab National Bank,

Sundernagar. He deposed that the accused stopped

payment by a request letter dated 05.06.2007, which

was to the effect that a litigation is pending and that till

the decision of that litigation, payment may not be

made. In the application of the accused produced by

the witness, as D.1, it has been mentioned that the

complainant has agreed to receive full and final

maintenance amount of Rs.3,00,000/- for whole life and

in this regard the complainant issued the cheque.

17. It has been alleged that, in the notice,

Ext.CW.1/B, which was sent by the complainant,

nothing has been mentioned as to why the complainant

received the cheque in question. In the reply,

Ext.PW1/G, it has been mentioned that the cheque was

issued in lieu of full and final maintenance demanded

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9

by the complainant and the complainant also agreed to

compromise in all the cases pending between the

complainant and the accused and, therefore,

.

complainant received the cheque and the accused

handed over the same in good faith. It has been

mentioned in the reply to the notice that accused

offered to pay the cheque amount on the condition of

complainant fulfilling her commitment of compromise,

the cases pending in the Court and to agree for a

decree of divorce dissolving the marriage between the

complainant and the accused.

18. It has been alleged that the complainant has

not given any indication in the complaint as to why she

received cheque in question. In examination-in-chief, as

CW.3, the complainant did not depose anything about

the reason of receiving the cheque by her. It has been

alleged that other litigation regarding some

matrimonial dispute was also pending.

19. The accused while appearing as DW.2, has

deposed that the maintenance amount was enhanced

by the Court, so, he challenged that order. It has been

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10

deposed that in the month of February, 2007, the

complainant came to him (the accused) and told that

the accused is going to retire from service and will get

.

amount at the time of retirement, therefore, he should

finally settle the matter and that the complainant will

withdraw all the cases filed by the complainant against

the accused and will also divorce the accused. This is

alleged to have been agreed in the presence of one

Inder Singh. According to him, thereafter, he brought

his cheque book and gave a post-dated cheque of

Rs.3,00,000/-. The accused has further deposed that he

issued a post-dated cheque of dated 15.06.2007,

because he could have received amount from the

department. However, complainant did not consented

for divorce nor entered into a full and final settlement

of maintenance, therefore, the accused applied to the

Bank Manager by an application, Ext.D.1 and got

stopped the payment of cheque. In his cross-

examination, the accused has admitted that the

complainant used to send complaints against him and

again regarding second marriage by him. He denied

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11

that the complainant (Himachali Devi) has demanded

land and room from him. He denied that he himself

told the complainant to withdraw the complaint and

.

that he agreed to pay maintenance and money to the

complainant for raising of house. However, there is no

such averment in the complaint nor any deposition of

complainant on oath. The accused has admitted that

he has not filed any case against the complainant and

he has filed the petition for divorce and reducing the

maintenance. He denied that he has issued cheque,

Ext.CW.1/A to the complainant for maintenance and

admitted that he has given cheque for final

settlement. He also denied that for final settlement of

litigation and divorce no conversation was entered into

and also denied that Inder Singh was not present.

20. DW.3, Inder Singh deposed that he visited

Sanskrit College on the request of the accused and a

talk for final settlement was taken place and thereafter,

the accused issued a cheque of Rs.3,00,000/- to the

complainant.

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12

21. The evidence as led by the defendant is not

trustworthy for the reason that the complainant has

.

went to the office of the accused and there only the

cheque was issued. The case of the complainant was

that, as the accused was only to get retirement

benefits, after the formalities were being completed by

the wife, i.e. the complainant. So, to get the formalities

completed and take her signatures, the accused gave

her a cheque of Rs.3,00,000/-.

r This means that the

complainant, who was the wife of the

respondent/accused, was definitely a nominee and

otherwise also has a right in the earnings and the

retirement benefits of the accused being his wife, but

the accused with mala fide intentions made her to sign

the papers wherever required and gave her a cheque of

Rs.3,00,000/-. This payment of Rs.3,00,000/- is thus for

consideration, i.e. the complainant being the wife of

the accused and the accused has given her a cheque of

Rs.3,00,000/- as being her husband for her

maintenance etc. etc., as she is living alone, as the

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13

accused has contracted second marriage and has

children from the second marriage. Further, the

presumption of truth is attached to the cheque under

.

Section 139 of the Negotiable Instruments Act and that

presumption is not rebutted by the accused. So, the

presumption that the cheque was issued for

consideration is not rebutted by any cogent evidence.

The evidence of the accused is interested and cannot

be relied upon.

Even if we accept the case of the

accused, what was the necessity for him to issue post-

dated cheque without there being any compromise, as

the case is projected by him. There is no explanation

on behalf of the accused to this effect that why he

issued the post-dated cheque when he could have

given the cheque at the time of compromise, if the

cheque was to be given for the purpose of compromise

only. Rather, the case of the complainant that the

cheque was issued to her (complainant), as the

pensionary/retiral benefits could not have been

released to the accused without there being formalities

completed by the complainant being the wife of the

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14

accused. So, the accused gave her cheque of

Rs.3,00,000/-. Thus, the statements of the witnesses of

the complainants are fortified by the circumstances as

.

well and without there being any explanation or

rebuttal on behalf of the complainant that the cheque

was not issued for consideration, the presumption

attached to the fact that the cheque was issued for

consideration is always there. All other ingredients

were proved that the issuance of the notice within

stipulated time, non payment of the amount after

receipt of the notice within one month, thus, clearly

and conclusively proves the guilt of the accused under

Section 138 of the Negotiable Instruments Act, as

discussed hereinabove. So, the accused is convicted

under Section 138 of the Negotiable Instruments Act.

Let the accused be called for pronouncement of the

sentence on 30.05.2018.

(Chander Bhusan Barowalia)
Judge

May 29,2018
(M.gandhi))

29/05/2018 23:03:43 :::HCHP

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