JUDGMENT
Sham Sunder, J.
1. This appeal is directed against the judgment dated 15.7.2005 rendered by the Court of Shri A.S. Grewal, Addl. Chief Judicial Magistrate, Ropar, vide which it acquitted accused, Usha Bansal, for the offence, punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter called as ‘the Act’ only).
2. The facts, in brief, are that the accused was in need of money and she approached the complainant, and borrowed a sum of Rs. 80,000/-, from him. She promised to return the said amount, to the complainant, on demand. Thereafter, the complainant approached and requested the accused several times to return the amount, but she (accused) put him off, on one pretext or the other. Ultimately, the accused issued a cheque bearing No. 449545 dated 8.4.2002 of Punjab National Bank, Branch Kurali, in the sum of Rs. 80,000/-, in favour of the complainant. When the complainant presented the said cheque, in his Bank, i.e. Oriental Bank of Commerce, for encashment, the same was dishonoured by the Punjab National Bank with the remarks “insufficient funds”. Thereafter, the complainant issued a legal notice dated 8.4.2002 to the accused, but she did not repay the amount of the cheque. Ultimately, a criminal complaint was filed by him.
3. On appearance of the accused, she was supplied the copies of documents, by the trial Court. Notice under Section 138 of the Act, was served upon the accused, to which she pleaded not guilty and claimed trial. The complainant, in support of his case, examined Narinder Kumar Jain, Computer Operator, Punjab National Bank, Kurali, (CW-1), Dharminder Kumar, Clerk of Oriental Bank of Commerce, (CW-2), and himself appeared in the witness-box as (CW-3). Thereafter, he closed his evidence. The statement of the accused under Section 313 Cr.P.C., was recorded, and she was put all the incriminating circumstances, appearing against her, in the evidence of the complainant. She pleaded false implication. She denied that any amount was borrowed by her, from the complainant. She further stated that she never issued any cheque. It was further stated by her, that the cheque was a procured document. In defence, she examined Prem Nath (DW-1). Thereafter, the defence evidence was closed by her.
4. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, acquitted the accused.
5. Feeling aggrieved, the instant appeal, was filed by the complainant/appellant.
6. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
7. The Counsel for the complainant/appellant, at the very out-set, submitted that since the cheque, referred to above, was issued by die accused/respondent, in the discharge of her legal liability, in favour of the complainant, as soon as the same was dishonoured, and she refused to repay the amount, she committed the offence, punishable under Section 138 of the Act. He further submitted that as soon as the cheque, in question, was issued and the signatures thereon, were either admitted or proved, a statutory presumption under Section 118 of the Act, could be drawn that the said cheque was made or drawn for consideration on the date, which the said cheque bears. He further contended that the trial Court was wrong in coming to the conclusion that the accused/respondent, did not borrow an amount of Rs. 80,000/- from the complainant/appellant, nor the cheque was issued for the discharge of legal liability. He further contended that the judgment of the trial Court, being perverse, was liable to be set aside.
8. On the other hand, the counsel for the respondent contended, that it was proved from the statement of Naranjan Lal-complainant, that he did not pay any amount of Rs. 80,000/-, to the accused/respondent, and, as such, the question of issuance of cheque aforesaid, for the discharge of legal liability, by the accused/respondent, did not at all arise. He further contended that a statutory presumption, could be rebutted by the accused/respondent, either by leading defence evidence, or during the course of cross-examination of the witnesses, produced by the complainant. He further contended that the said statutory presumption was duly rebutted, by the accused/respondent, and, as such, the trial Court was right, in coming to the conclusion, that no offence under Section 138 of the Act, was committed by me accused. He supported the judgment of the trial court.
9. The first question, that arises for consideration, in this appeal, is, as to whether the accused/respondent borrowed a sum of Rs. 80,000/-, from the complainant, and, for the discharge of that debt, cheque Ex. C-8, dated 8.4.2002, in the sum of Rs. 80,000/- was issued by her. Naranjan Lal-complainant, when appeared as CW-3 (wrongly numbered as CW-4 by the trial Court), during the course of cross-examination, in clear-cut terms, admitted that he never gave any money to Usha Bansal, accused. He further admitted that he never deposited any amount, with the Committee of Usha Bansal. He admitted, during the course of cross-examination that he never gave any money to Usha Bansal till today. Prem Nath (DW-1), stated that he knew the parties. He further stated that Naranjan Lal-complainant, was working as a Pujari, in Baba Balak Nath Mandir, and he used to run committees. He further stated that Naranjan Lai, complainant, also enlisted him as a member of the committee. Every member had to contribute Rs. 5,000/- per month, and the said committee used to be auctioned and the person, who was ready to take the amount, at the minimum rate, was given the said committee. He further stated that, at the time of starting the committee, the complainant had taken blank cheques, from the committee members, as security. He further stated that Usha Bansal had given a blank cheque, to the complainant, at the time, when he had started running the committee.
10. From the cross-examination of Naranjan Lal, complainant, and the statement of Prem Nath (DW-1), it, thus, became abundantly clear that no amount, whatsoever, in the sum of Rs. 80,000/-, had not been borrowed, by the accused, from the complainant, the question of discharge of that liability, by issuing the cheque Ex. C-8, for consideration did not at all arise. It was only a blank cheque, which was issued by Smt. Usha Bansal, accused, when she became the member of the Committee, being run by the complainant. This cheque was apparently misused by the complainant, by filing up the amount of Rs. 80,000/-. In these circumstances, even if, such a cheque was dishonoured, when presented by the complainant, it did not constitute any offence, punishable under Section 138 ofthe Act. The trial Court was, thus right in holding that no offence punishable under Section 138 ofthe Act, was committed.
11. Even the complainant, had no financial capacity, to pay a sum of Rs. 80,000/- to the accused, as alleged by him, in the complaint, as also in his evidence. In the complaint, he did not mention the date, time or the month, when a sum of Rs. 80,000/-, was borrowed by the accused, from him. He even, did not give the approximate month or the year, when the amount of Rs. 80,000/- was borrowed by the accused, from him. However, in his statement, in the Court, he stated that the accused assured him to return the amount, after six months, but she did not return the same, to him, and thereafter, issued the cheque aforesaid. The cheque is dated 8.4.2002. It means that the amount was allegedly borrowed by the accused, six months prior thereto i.e. sometime in the month of October, 2001. The complainant, during the course of cross-examination stated that he was a Pujari in a Temple, known as Baba Balak Nath Mandir, Ward No. 2, Kurali. He further stated that he was getting Rs. 400/-, as his salary from the Mandir Committee. He further stated the he had been working as Pujari, since 1991 and had been residing in the Mandir, alongwith his family. It was further stated by him that he had got three children, who were school going. He further stated that his elder son was studying in 9th standard. His second son was studying in 7th class, and third son was studying in 5th class. He further stated that he was doing no other business, except the aforesaid job. He further stated that he was maintaining his family, from the above said salary of the tern pie. He further stated that he was doing job outside the temple, but he could not tell, as to which other job, he was doing. A person, whose monthly salary is Rs. 400/-, and who is having no other source of income, and his three children are school going, could not be said to be having financial capacity, to lend a sum of Rs. 80,000/-, to the accused. From the said statement of the complainant, himself, it was proved beyond doubt, that he was not in a position to lend the huge amount of Rs. 80,000/- to the accused. Not only this, it is evident from Ex. C-4, the statement of account of the complainant, produced, on the record, that on 4.10.2001, he was having a sum of Rs. 14,000/- as balance amount, in his aforesaid account, whereas, on 5.10.2001, he was only having Rs. 4,000/-, as balance amount, in his account, and on 6.10.2001, he was having only a balance amount of Rs. 2,000/-, in his aforesaid Bank account. The said statement of account of the complainant also clearly proved that he had no amount of Rs. 80,000/-, with him, on the date, the same was allegedly borrowed by the accused from him. Such a huge amount, could not be said to be, in the house of a person, like the complainant, who was merely a priest earning Rs. 400/- per month. This also clearly proved that the blank cheque Ex. C-8, was issued by the accused, when she became the member of the Committee, being run by the complainant, and this was misused by him (complainant) later on, by filling up an amount of Rs. 80,000/- therein, to fasten the liability, upon her. The submission of the Counsel for the complainant/appellant, that the judgment of the trial Court was perverse, therefore, being without merit, must fail and the same stands rejected.
12. No other point, was urged, by the Counsel for the parties. In view of the above discussion, it is held that the judgment dated 15.7.2005, rendered by the Court below, is based on the correct appreciation of evidence, and law, on the point. The same warrants no interference.
15. For the reasons recorded, herein before, the appeal is dismissed. The judgment dated 15.7.2005, rendered by the Court below, is upheld.