High Court of Punjab and HaryanaCRM-A/544/2015dismissed

Gaurav Chopra v. M/S Bigcat Digital Media And ORS.

2022-10-10Mr. Justice Pankaj Jain6 pages

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of decision : October 10 , 2022 Gaurav Chopra ...... Petitioner

Versus

M/s Bigcat Digital Media and others ...... Respondent CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN *** Present :- Mr. P. R. Yadav, Advocate for the applicant.

None for respondent Nos.1 and 2.

Mr. Sumit Jain, Addl. A.G. Haryana.

*** PANKAJ JAIN, J.

The complainant seeks leave to appeal against the judgment dated 31.10.2014 whereby the complaint filed by the applicant against the respondent under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') stands dismissed. As per the complainant respondent took a loan of Rs.5 lacs. To discharge of his liability of two cheques bearing number 801366 dated 27.7.2013 and 801372 dated 5.8.2013 were issued. When presented, both the cheques were dishonoured. It is claimed that the accused issued another cheque bearing number 801370 dated 18.9.2013 for an amount of Rs.5 lacs. However, the same was also dishonoured with the remarks "payment stopped by drawer" vide memo dated 23.9.2013. The trial court while dismissing the complaint held as under:- "16. Perusal of above testimonies of complainant and accused, it is clear that the complainant could not prove his lending of loan to the accused as admittedly no receipt, etc was obtained. No record/ accounts as admitted by complainant has been

produced by him. complainant was not clear about the date of loan in his cross examination. Admittedly, both of them shared same table space with each other from April 2012 to AugustSeptember 2013. Admittedly, the cheques in question were dishnoured due to the reason of payment stopped drawer. Admittedly, accused has transferred a sum of Rs. 9 Lacs to the account of complainant on 09.09.2013. When such is the case, there was no occassion for the complainant to present cheque no. 801366 and 801372 just after one day of receipt of above payment of Rs. 9 Lacs. Also, there was no occassion to present the cheque in question on 21.09.2013. The accused has taken the same defence when he replied to the statutory legal notice of complainant, the receipt of which has been admitted. The complainant has been cross examined on same lines and the accused has put forth the same story in his defence. Once, the cheques of the accused have been misplace, the best option was to get the payment stopped by his bankers, which has exactly been done by accused.

17. Even if for the sake of arguments, let us presume that the entire defence/ story put forth by the accused is false, then also the case of the complainant is doubtful. This is primarily because the receipt of Rs. 9 Lacs just one day before presenting the other two cheques that is cheque no. 801366 and 801372 has been unexplained. The complainant was in knowledge of defence of accused, and the onus shifted upon the complainant to prove otherwise. Another vital aspect of the case which raises yet another doubt in the case of complainant is that when the complainant had cheque no. 801366 and 801372 which are dated 27.07.2013 and 05.08.2013 with him, why did he not presented the same till 9.2013. In these circumstances, the argument of learned counsel for accused are acceptable." Learned counsel for the applicant while attacking the judgment submits that the impugned judgment of acquittal cannot be sustained. It has been asserted that the acquittal is mainly on two grounds i.e. a) no receipt etc.of loan was proved and

b) Rs.9 lacs was transferred in the account of complainant on 5.9.2013.

Learned counsel for the applicant submits that once the signature on the cheque leaf were admitted by the accused, complainant was not required to prove payment of loan. He further submits that rather defence taken by the accused that he paid Rs. 9 lacs on 5.9.2013 eats into the first reasoning recorded by the trial court. He further submits that so far as the receipt of Rs.9 lacs is concerned the same was fully explained by the applicant. He thus, claims that the acquittal of the respondent deserves to be set aside being against the settled proposition of law. I have heard learned counsel for the applicant and have gone through the record of the case.

As per settled proposition of law laid down by the Apex Court in

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The presumption under Section 139 of the Act is rebuttable. The accused is well within his right to rely upon the evidence lead by the complainant to rebut the said presumption. The standard of proof with respect to defence of an accused is preponderance of probabilities. In the present case, the cheques in question were dishonoured by assiging the reason "payment stopped by drawer". The cheque is dated 18.9.2013. On 9.9.2013 the accused transferred a sum of Rs. 9 lacs to the account of the complainant. The accused replied to the statutory legal notice to the complainant raising same defence. The receipt of such reply is not disputed. The accused has thus raised a probable defence. So far as the possession of the applicant over the cheques in question is concerned it is also admitted fact that both the parties used to share same table space from April 2012 to September 2013. The accused claims that after the cheques were misplaced

he stopped the payment which is the most obvious thing that a person does. Scope of appeal has ben culled out by the Apex Court in

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# * Learned counsel for the applicant has not been able to point out any evidence on record which has not been considered by the trial court. He is also not in a position to deny the fact that the view taken by the trial court is a more probable view.

Keeping in view these facts and circumstances which are

peculiar to the present case and the settled proposition of law as discussed hereinabove, no ground to interfere in the well reasoned judgment passed by the trial court is made out.

Consequently, the present application seeking leave to appeal is dismissed being without merit.

( PANKAJ JAIN ) JUDGE October 10 , 2022 archana Whether speaking/reasoned Yes Whether Reportable :