Case BriefsHigh Courts

Himachal Pradesh High Court: Ajay Mohan Goel, J. dismissed the appeal on finding no substantial question of law involved in the appeal.

Factual matrix of the case was that the plaintiff filed a suit for recovery of a certain amount along with the interest rate; the contract was based on mutual understanding and was a written one. The plaintiff contended that the defendant had executed a receipt or undertaking for the borrowings that were made. Allegedly defendant issued a cheque in favor of the plaintiff to discharge part liability but the same was dishonored. Subsequently, the plaintiff initiated proceedings under Section 138 of the Negotiable Instruments Act. The plaintiff submitted that thereafter the matter was compromised between the two, however, the balance amount is still due.

On the contrary, the defendant submitted that the sum was never borrowed from the plaintiff neither any receipt was executed by him. The learned Trial Court had adjudicated the matter and framed several issues, like ‘Whether plaintiff suppressed material facts from the Court’ and ‘Whether the plaintiff has no locus standi to file the present suit, as alleged?’

Trial Court decreed the suit in favor of the plaintiff on the basis of the evidence presented. The contention of defendant that the document presented was not the original receipt stood answered in negative by learned trial Court by holding that receipt was the original document and the objection raised by the defendant against the same was bad, especially as defendant in the witness box had admitted in his cross-examination that signatures on said receipt was his. The trial court had relied upon, Ajudya Lal v. Sandhya Devi, HJL 2006 (2) 943, where the Court had held that ‘there could not be evidence stronger than an admission by the parties in the civil cases.’ Against the order of the Trial Court the defendant filed an appeal. However, the appeal was dismissed. Learned Appellate Court also took notice of the fact that the defendant in his statement had clearly admitted his signatures on the said exhibit. On this basis, learned Appellate Court had held that it was apparent that the defendant was yet to pay an amount to the plaintiff.

Hence, the defendant now filed a second instant appeal aggrieved by the Judgment of trial court and Appellate Court, defendant had argued that the Judgments and decrees passed by both the learned Courts below were not sustainable in the eyes of law as the learned Courts below have erred in not appreciating that exhibit was a false and fabricated document and a scanned copy of the same was exhibited and suit could have been decreed by relying upon the said exhibit.

On the contrary, the plaintiff had submitted that there was no perversity with the findings. He had further argued that as the allegation of the defendant was that the exhibit was a forged document, the onus was upon him to prove the said fact, which he was not able to prove. Accordingly, he urged that as the appeal sans merit, the same be dismissed.

The Court, observed the concurrent findings by the Courts below and held that, “The scope of interference by the High Court in Second Appeal under Section 100 of the Code of Civil Procedure is only if the Court finds that there is substantial question of law involved in the appeal.” Further, it was held that there was no substantial question of law involved in the case. Both the Courts have given the Judgment in favor of the plaintiff after examining all the evidence and pleadings. Hence, the appeal was dismissed.[Satyapal Kashyap v. P.P.S. Chhatwal, 2019 SCC OnLine HP 1561, decided on 19-09-2019]

Case BriefsHigh Courts

Himachal Pradesh High Court: Sandeep Sharma, J. contemplated the petition filed under Section 12 of Contempt of Courts Act, where the petitioner prayed for punishing the respondent for willful disobedience of judgment passed by the Court.

The factual matrix of the case was that a case was filed against the respondent under Section 138 of Negotiable Instruments Act for dishonor of cheque, for which he was held guilty and the respondent undertook that he will make payments of the entire amount of compensation, after which the Court had compounded the offence and set aside the conviction. Respondent was sentenced for a month and compensation was also levied against him. The aforesaid judgment of conviction was upheld by learned Sessions Judge; subsequently, the respondent approached the Court by way of Criminal Revision under Section 397 CrPC and prayed to set aside judgments of conviction recorded by learned Courts below.

Court in the revision application considered the undertaking given by the respondent that he would pay the amount of compensation before a particular date and also deposited 15% of the cheque amount with the Himachal Pradesh State Legal Services Authority, proceeded to compound the offence and set aside the impugned judgments of conviction and sentence recorded by learned Courts below. Since the respondent failed to honor the undertaking given to Court, complainant had approached the Court in the instant proceedings, seeking appropriate action against the respondent for willful disobedience of judgment.

The respondent had tendered an unconditional apology for the disobedience on his part. It had been categorically stated that on account of non-compliance of the direction issued in the judgment rendered, the respondent had undergone imprisonment for one month. He further submitted that on account of financial constraints he was not in a position to fulfill his undertaking. The counsel for the respondent V.S. Chauhan submitted that the respondent had completed the tenure of his imprisonment. Hence, leniency was sought related to further consequences of default.  He further contended that since the respondent had already suffered for more than one month and appropriate remedy under law, was available to the complainant for the realization of his money, no fruitful purpose would be served in case of action, if any, was taken against the respondent.

The Court, found that in judgment by the Court had ordered that in the event of non-fulfillment of the solemn undertaking furnished by the respondent to the Court, judgment of conviction and sentence would automatically revive and separate proceedings for violation of undertaking would be initiated against the respondent in terms of provisions contained under the Contempt of Courts Act, 1971. But since the respondent, on account of his non-fulfillment of the undertaking, had already undergone imprisonment for one month and the complainant has a separate /specific remedy under Section 421 CrPC, for realization of amount of compensation awarded by learned trial Court, the Court saw no reason to proceed against the respondent in the instant proceedings. Further, it had been specifically stated in the reply that the respondent was not in a position to fulfill the undertaking.

The Court further noted that in Chintala Symala v. Chintala Venkata Satyanarayan Rao, (2008) 10 SCC 711, the Supreme Court had held that “We do not find any ground to modify the quantum of maintenance. However, as the contemnor has expressed his inability to pay the amount of maintenance in terms of the order passed by this Court, we do not consider it appropriate to proceed with the contempt case. At the same time, we consider it just and expedient to recall order.”

Hence, the Court decided to drop the charges on the decision rendered by the Supreme Court. Contempt notice issued to the respondent was discharged.[Dinesh Kumar Nanda v. Ramesh Ranta, 2019 SCC OnLine HP 1348, decided on 27-08-2019]

Case BriefsHigh Courts

Kerala High Court: Instant appeal was contemplated against acquittal order of the accused under Section 138 of the Negotiable Instruments Act, 1881 by a Single Judge Bench of N. Anil Kumar, J.

The accused borrowed a certain amount from the complainant and also issued a cheque towards repayment in the name of the complainant. Subsequently, the cheque was dishonored and the reason cited was ‘insufficient funds’. Complainant advanced his argument on the basis of the notice which he served upon the accused earlier after the cheque was dishonored. It is further contended that the accused, however, did not reply to the notice nor did he pay the cheque amount to the complainant. The complainant filed a criminal complaint under Section 138 of the NI Act before the Court below.

The counsel for the complainant, K. Babu and Johnson Gomez submitted that on service of summons by the trial Court, the accused appeared and did not plead guilty. The accused cited that he had borrowed a sum of Rs 10,000 from the father of the complainant. He further contended that the said amount was returned. That apart, he contended that the cheque leaves which he gave as security were not returned when the amount was paid back. According to him, he had no account with the said bank of which the complainant had presented the unpaid cheque. It was the father of the complainant who introduced him in the said Bank for the purpose of opening an account there. In support of his contentions, he produced his passbook and the other relevant evidences. The trial Court on the basis of the evidence and on the testimony of the witnesses accepted the contention of the accused and acquitted him, therefore.

The Court observed that in order to determine the question whether offence punishable under Section 138 of the Act was made out against the accused, it was foremost necessary to examine the Penal provision of Section 138 of the Act and the presumptions to be raised as envisaged by the provisions of Sections 118 and 139 of the Act. It further stated that in the trial under Section 138, a presumption was to be made that every negotiable instrument was made or drawn for consideration and that it was executed for the discharge of debt or liability once the execution of negotiable instrument was either proved or admitted. When the complainant discharged the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 were very much available to the complainant and the burden shifted on the accused. However, this presumption was rebuttable. Under the circumstances, it was the duty of the accused before the court by adducing that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged.

An appeal was allowed and the judgment of the trial court was set aside the Court held that, “the trial court patently erred in holding that the burden was on the complainant to prove that he had advanced the loan and the blank cheque was given to him in repayment of the same, the finding of the trial court that the case of the complainant is not proved beyond reasonable doubt is perverse.”[Manesh Varghese v. Sainulabudeen, 2019 SCC OnLine Ker 2029, decided on 25-06-2019]

Case BriefsHigh Courts

Patna High Court: The Bench of Ahsanuddin Amanullah, J. allowed an application filed under Section 482 of the Code of Criminal Procedure, 1973 seeking quashing of a criminal case.

Respondent 2 herein had filed a complaint against petitioner and few other people alleging that he had induced him to invest Rs 28 lakhs in a construction company. The Magistrate took cognizance of the said offence under Sections 120 B, 420 of the Penal Code, 1860 and Section 138 of the Negotiable Instruments Act, 1881 and issued summon against the petitioner. Aggrieved thereby, the instant application was filed.

The petitioner’s case was that there was no material on record to show that he had induced respondent 2 to invest in the company. It was argued that making the petitioner an accused in the case, only because he was a Director of the Company, was abuse of process of the Court.

The Court noted that there being absolutely no allegation against petitioner in the entire complaint with regard to either inducement or entrustment of money or even issuance of cheque; just because he was a Director in the concerned company, it would not make him liable for any of the allegations levelled against other co-accused. It was concluded that prosecution against the petitioner was with malafide intention and only to harass him. Accordingly, the entire criminal proceeding against him was quashed.[Ramanjee Jha v. State Of Bihar, 2019 SCC OnLine Pat 228, Order dated 21-02-2019]

Case BriefsHigh Courts

Punjab and Haryana High Court: This petition was filed before a Single Judge Bench of Rajbir Sehrawat, J., in order to quash an FIR registered under Sections 120-B, 406, 420 of Penal Code and other subsequent proceedings arising therefrom.

Facts of the case were such that petitioner wanted to receive distributorship from “Bombay Dyeing” from alleged and was assured of the same but since the alleged refused, petitioner filed a complaint about cheating against the alleged. Petitioner was charged for conspiring under the registered FIR. It was contended by petitioner that Section 138 of Negotiable Instruments Act and Sections 420, 406 of IPC are mutually exclusive thus if the complaint has been filed under Section 138 then FIR under Sections 420 and 406 of Penal Code cannot be lodged for the same cause of action and hence liable to be quashed.

High Court stated that there is no such concept as “same cause of action” or “cause of action” in criminal jurisprudence. Once material against petitioner was found for involvement in a conspiracy then per se FIR cannot be quashed. On the contention of the offences being mutually exclusive, the court was of the view that an accused is liable to be punished from the stage of an attempt to commission of the offence and various offences like this can be charged together. It was discussed that Section 138 has a limited scope of trial and punishment for the offence and if the plea of the offences being exclusive to each other is taken then that would mean that other offences not covered under Section 138 cannot be filed. The Court found no application of Section 300 of Criminal procedure code and Article 20 of the Constitution of India. Therefore, the petition was dismissed as no ground to quash the FIR was found. [Sazid Khan v. State of Haryana,2018 SCC OnLine P&H 1733, decided on 27-07-2018]