Anil Dhir Vs State of Punjab (Punjab & Haryana High Court)
The brief facts of the case are that the complainant-Sh. Pankaj Galhotra proprietor M/s Anahita Enterprises filed this complaint alleging inter alia that he was doing the business of manufacturing knitted fabric and the accused No.1-Anil Dhir (petitioner No.1 herein) on behalf of accused No.2-M/s Refine Traders (petitioner No.2 herein) purchased the said goods from the complainant through invoice No.32 dated 20.03.2013 for Rs.4,58,000/- and in order to discharge their legal enforceable liability towards the complainant, the accused No.1/petitioner No.1 on behalf of accused No.2 issued a cheque bearingNo.985877 dated 23.03.2013 for Rs.4,58,000/- drawn on Oriental Bank of Commerce, 2594, Main Road Sunder Nagar, Ludhiana in favour of the complainant, with the assurance that the same would be encashed on its presentation. However, on presentation of the said cheque by the complainant through his bankers, the cheque was received back dishonoured with the remarks “Opening Balance Insufficient” vide bank memo dated 29.03.2013. Upon this, the complainant got issued the statutory legal notice through his counsel on 25.04.2013 calling upon the accused to make good the amount covered under the cheque in question but despite this, the accused did not pay the said amount within 15 days from the date of receipt of the notice. Hence, the complainant had been constrained to file a complaint.
After hearing the proxy counsel and having examined both the judgments of conviction passed by the learned Trial Court as also the learned Appellate Court, I find no ground to interfere with the well-reasoned judgments of the said Courts. Firstly, the service of the notice upon the accused cannot be denied in the light of Section 27 of the General Clauses Act, as per which, a presumption is raised in favour of the complainant that the notice had, in fact, been delivered. The arguments that certain documents had been forged and fabricated is absolutely incorrect. Had that been the case, the accused would have certainly filed a criminal complaint in that regard. No effort has been made to examine any expert either. Further, there is no denial by the petitioner to the signatures upon the cheque and the stand taken by the petitioner is only that the cheque, in question, had not been issued in the discharge of any legal enforceable debt but had been misused and, in fact, no goods had been received by him. Except his bald assertion, the accused has not been able to raise a probable defence even while referring to the cross-examination of the complainant and his witnesses. Thus, it is apparent that there is absolutely no infirmity in the judgment of conviction passed by either the Trial Court or the learned Appellate Court vide which the judgment of the Trial Court has been affirmed. Therefore, finding no merit in the present petition, the same is hereby dismissed.
FULL TEXT OF THE JUDGMENT/ORDER OF PUNJAB AND HARYANA HIGH COURT
The present revision petition has been filed impugning the judgment dated 12.05.2017 passed by the Additional Sessions Judge, Ludhiana whereby the appeal filed by the petitioner was dismissed and the judgment of conviction dated 14.09.2015 passed by the Judicial Magistrate Ist Class, Ludhiana was upheld.
2. The brief facts of the case are that the complainant-Sh. Pankaj Galhotra proprietor M/s Anahita Enterprises filed this complaint alleging inter alia that he was doing the business of manufacturing knitted fabric and the accused No.1-Anil Dhir (petitioner No.1 herein) on behalf of accused No.2-M/s Refine Traders (petitioner No.2 herein) purchased the said goods from the complainant through invoice No.32 dated 20.03.2013 for Rs.4,58,000/- and in order to discharge their legal enforceable liability towards the complainant, the accused No.1/petitioner No.1 on behalf of accused No.2 issued a cheque bearingNo.985877 dated 23.03.2013 for Rs.4,58,000/- drawn on Oriental Bank of Commerce, 2594, Main Road Sunder Nagar, Ludhiana in favour of the complainant, with the assurance that the same would be encashed on its presentation. However, on presentation of the said cheque by the complainant through his bankers, the cheque was received back dishonoured with the remarks Öpening Balance Insufficient” vide bank memo dated 29.03.2013. Upon this, the complainant got issued the statutory legal notice through his counsel on 25.04.2013 calling upon the accused to make good the amount covered under the cheque in question but despite this, the accused did not pay the said amount within 15 days from the date of receipt of the notice. Hence, the complainant had been constrained to file a complaint.
3. Based on the evidence, the accused came to be summoned vide order dated 21.05.2013. Notice of accusation was served upon him on 20.02.2014. During the course of post summoning evidence, Pankaj Galhotra-complainant stepped into the witness box as CW-1 and proved on record documents i.e. invoice Ex.C1, cheque Ex.C2, memo Ex. C3, legal notice Ex.C4, postal receipts Ex.C5 and Ex.C6.
4. The statement of the accused under Section 313 Cr.P.C. was not been issued in order to discharge any legal enforceable liability towards the complainant. In fact the complainant had misused the cheque in question. He did not owe any liability towards the complainant. He alleged that no goods were received by him. Pankaj Galhotra was not the proprietor of Anahita Enterprises. No notice was served upon him. He had not committed any offence and the complainant had forged the cheque Ex.C2. On being asked whether he wanted to lead any defence evidence, the accused replied in the affirmative but did not examine any witness in his defence.
5. The counsel for the complainant contended during the trial that the accused had issued the cheque in question in discharge of his legal liability. The accused had assured that the cheque would be encashed on presentment but when the said cheque was sent for clearance the same was returned back dishonoured vide memo dated 29.03.2013. Thereafter, a legal notice demanding the payment of the cheque was sent at the correct address of the accused but despite that, the accused failed to make the outstanding payment. On the strength of these facts, it was argued by the learned counsel for the complainant that the provisions of Section138 of the N.I. Act are duly attracted in this case and the accused was liable to be punished as per law.
6. The learned counsel for the accused/petitioners argued that the accused was falsely implicated in this case as no goods were supplied by the complainant to the accused. Pankaj Galhotra was not the proprietor of M/s Anahita Enterprises and contends of the cheque were not in hand of accused/petitioners. He argued that the complainant had forged the cheque Ex.C2.
7. The Trial Court came to the conclusion that the complainant was nowhere asked to bring on record the document showing him to be a proprietor of M/s Anahita Enterprises. As per provisions of the General Clauses Act, there was a presumption that once the notice had been sent vide a registered post to the address of the petitioners-accused, it was deemed to have been served. The contention that the cheque had been forged had not been substantiated by the accused-petitioners by examining any handwriting expert, and the Trial Court, thus, came to the conclusion that the accused had failed to rebut the presumption under Section 139 of the N.I. Act that he had issued the cheque in question for the discharge of his legally enforceable debt. In fact, he had failed to raise a probable defence.
8. On the basis of the evidence led, the petitioner came to be convicted and sentenced vide judgment and order dated 14.09.2015 passed by the Trial Court as under:-
