Sudhir Kumar Bhalla Vs. Jagdish Chand, Etc. Etc.  INSC 781 (1 May 2008)
S. B. Sinha & Lokeshwar Singh
O R D E R REPORTABLE CRIMINAL
APPEAL No. 776 OF 2008 [Arising out of S.L.P. (Crl.) No.2541 of 2007] WITH
CRIMINAL APPEAL Nos. 780, 781, 779, 782, 777 & 778 OF 2008 [Arising out of
S.L.P. (Crl.) No. 2545, 2546, 2548, 2550, 2988, 2990 of 2007] Leave granted in
all the above-said Special Leave Petitions.
We have seven appeals before us in
which the parties are similar. Since all these appeals arise out of common
judgments and orders dated 25.01.2007 and 19.02.2007 passed by a learned Single
Judge of the High Court of Punjab and Haryana in Criminal Appeal No. 1410-SBA
of 2002, Criminal Appeal No. 1411-SBA of 2002, Criminal Appeal No.
1412-SBA of 2002, Criminal Appeal
No. 1413-SBA of 2002, Criminal Appeal No. 1433-SBA of 2002, Criminal Misc.
Petition No.29090-M of 2001 and
Criminal Misc. Petition No.36987-M of 2001. As similar questions of facts and
law are involved, therefore, for the sake of convenience they are being heard
together and disposed of by this common judgment.
Brief facts, which led to the
trial of the appellant, are as follows:- Jagdish Chand - respondent herein and
his wife Smt.
Ramesh Rani are the proprietors of
M/s Mehra Export Corporation and M/s Mehra International, Katra Hari Singh,
Amritsar. The firms deal in saffron, herbs and other like goods. M/s Sudhir
Kumar Bhalla and Brothers, 25, Green Park, Ludhiana, of which Sudhir Kumar
Bhalla - appellant herein is one of the partners, has been purchasing various
goods from the firms of Jagdish Chand and Ramesh Rani. The sale price was being
paid in cash and at times, through cheques.
In the month of May, 1997, the
appellant on behalf of his firm issued six cheques Nos. 442344, 442345, 442346,
442347, 442348 and 442349 dated 01.05.1997, 03.05.1997 and 05.05.1997 in favour
of M/s Mehra Export Corporation and M/s Mehra International. Out of those six
cheques, two cheques were in the sums of Rs.30,000/- each and four cheques were
in the sums of Rs.40,000/- each. All those cheques were drawn in favour of the
Indian Overseas Bank, Ludhiana.
One of the cheques, in the sum of
Rs.30,000/-, was stated to have been encashed, whereas the other five cheques
have been dishonoured on the ground of 'Exceed Arrangement'. On 20.05.1997, the
respondent sent statutory notices under Section 138 (5) of the Negotiable
1881 [for short 'the Act'] to the appellant, which were despatched through
registered post on 24.05.1997. However, the same were received back on
28/29.5.1997 with a report that the addressee was 'not met'. The respondent
again sent another notice on 04.06.1997 through courier, which again was not
accepted by the appellant and the same was received back on 05.06.1997 with the
report of refusal.
It was on 13.06.1997 that the
respondent, on his behalf and on behalf of his wife as her attorney, filed five
criminal complaints under Section 138 of the Act read with Section 420 of the
Indian Penal Code [for short 'the IPC'] in the Court of Chief Judicial
Magistrate, Amritsar, against the appellant. On 09.07.1997, the
respondent-complainant made a statement that he wanted to withdraw the said
complaint with permission to file the fresh complaint. The learned Chief
Judicial Magistrate vide his order dated 09.07.1997 passed the following
order:- "In view of the statement given by the complainant, recorded
separately, the present complaint is hereby dismissed as withdrawn."
On 12.07.1997, the respondent
filed second complaint on similar and practically the same points purported to
have accrued on identical causes of action. The second complaint was entrusted
to the Court of Judicial Magistrate, 1st Class, Amritsar, who recorded the
statement/evidence of the respondent on 12.07.1997. Thereafter, the Judicial
Magistrate, 1st Class, vide order dated 23.08.1997 issued summon to the
appellant. The appellant appeared on 06.04.1998 before the Judicial Magistrate
and filed an application for discharging him in the case. However, on
01.06.1998 the Judicial Magistrate dismissed the said application. After
following and adopting the due procedure as prescribed under the Code of
Criminal Procedure, 1973 (for short 'Cr.P.C.'), the trial court dismissed the
complaint on 06.02.2002 and acquitted the appellant.
Being aggrieved by the order of
acquittal of the appellant by the trial court, the respondent filed five criminal
appeals, two as an attorney of his wife and three on his behalf, in the High
In April 1998, the appellant
approached the Court of Judicial Magistrate, 1st Class, Ludhiana, under Section
156 of Cr.P.C. by way of two separate applications alleging fraud, cheating,
tampering of the cheques by the respondent and his wife and prayed that the
police be directed to register criminal cases against them. On the directions
of the learned Magistrate, FIR No.93 of 1998 was registered against the respondent
under Sections 420, 463, 465, 468 and 471 of the IPC, whereas second FIR No.94
of 1998 was lodged against Jagdish Chand and Smt. Ramesh Rani under Sections
420, 463, 465, 468, 471 and 120-B of the IPC at Police Station, Sarabha Nagar,
Ludhiana. After investigation, the police filed challans in both the cases in
the court. The trial court charge sheeted the respondent and his wife vide two
separate orders dated 15.01.2000. They filed two revision petitions against the
orders of framing charges against them, which were dismissed by the learned
Sessions Judge, Ludhiana, vide separate orders dated 04.06.2001. The respondent
and his wife filed two Criminal Miscellaneous Petitions Nos. 29090 and 36987-M
of 2001 in the High Court challenging the validity and correctness of the
orders of the learned Trial Magistrate as also of the learned Sessions Judge.
The High Court vide its judgment
dated 25.01.2007 allowed the above-said five appeals and convicted the
appellant under Section 138 of the Act. By the same order, Criminal Misc.
Petitions Nos. 29090 and 36987-M of 2001 were allowed and FIR Nos. 93 and 94 of
1998 lodged by the respondent and his wife were quashed. By order dated
19.02.2007, the appellant was sentenced to undergo R.I. for one year and to pay
a fine of Rs.8 lacs and in default thereof, the appellant shall undergo further
R.I. of one year. Hence, the appellant has preferred these appeals.
We have heard the learned counsel
for the parties and with their assistance, examined the entire material placed
Mr. P.S. Patwalia, learned senior
counsel appearing on behalf of the appellant, assailed the judgment of the High
Court inter alia contending:- (i) that the learned Single Judge erred in not
appreciating the statement of the respondent- complainant in which he admitted
that all the cheques were filled by him, the date and figures of the amounts
were also in his handwriting and the appellant simply had signed the cheques.
According to the learned counsel, the cheques in question have been forged and
fabricated by the respondent by making material alteration by changing figure
in digit from Rs.30,000/- to Rs.3,00,000/- by adding 'zero' at the end of
Rs.30,000/- and Rs.40,000/- to Rs.4,00,000/- by adding 'zero' at the end of
Rs.40,000/-; and (ii) that the learned Single Judge erred in not addressing the
legal arguments raised on behalf of the appellant that the provisions of
Section 138 of the Act are only attracted if the cheques issued in discharge of
liability or debt are dishonoured, but not on account of security cheques.
Mr. Ankit Singhal, learned counsel
for the respondent, on the other hand, contended that the reasons given by the
High Court recording the order of conviction of the appellant are based upon
proper appreciation of evidence led by the respondent in the case. He submitted
that this Court should be slow to interfere in the well-reasoned and
well-merited judgment of the High Court.
We have given our anxious
consideration to the rival contentions of the learned counsel for the parties.
The arguments put forward by Mr. Patwalia deserve to be accepted.
We have gone through the record of
the trial Magistrate placed before us. In support of the complaint filed under
Section 138 of the Act, the trial Magistrate examined the respondent on 27.04.1999.
On 05.05.2000, the respondent in his cross-examination admitted as under:-
"I have brought the account books for the year 1995-96 and 1996-97. I have
seen the ledger for the year 1995-96 where there is a payment of rupees one lac
dated 26.10.1995 having been made by the accused to me but the remaining
amounts are for an amount of Rs.35,000/- each and at one time it was for an
amount of Rs.40,000/-. Once a payment of Rs.25,000/- was also made in the said
year. This ledger relates to the firm M/s Mehra Exports. The payments of
Rs.35,000/- each have been made either through cheques or through drafts.
I have also seen the ledger book
of M/s Mehra International for the year 1995-96.
Except Rs.10,000/- all the
payments made in this account are either through draft or through cheque. The
lowest payment in this account in this year is Rs.10,000/- the maximum payment
made by the accused to this firm in this account is Rs.50,000/-. The notices
were sent only to the firm M/s Sudhir Kumar Bhalla and Brothers before filing
the complaint and not to the partners individually. We did not receive any
cheque from the accused bearing No.442344. We never received any advance
payment from the accused. As per account books of firm M/s Mehra International
for the year 1997-98 a sum of Rs.7,16,672.50 ps. On account of principal amount
is due from the accused."
The respondent again stated as
under:- "The cheque No.442347 is in my hands which is dated 5.5.1997 but
the same is signed by accused Sudhir Kumar Bhalla.
All the cheques which are
subject-matter of other complaints are filled in by me and are signed by Sudhir
Kumar Bhalla accused. The dates on the cheques are also in my hands. The amount
of the cheques in words and figures are also in my hands. I can read the contents
of the cheques clearly."
On 05.05.2000, the trial court on
the basis of the statement of the respondent-complainant in his cross-
examination made the following observations:- "At this stage, counsel for
accused had made a request for giving note regarding the demoneur of the
witness as well as to give note on the aforesaid fact so that the document may
not be tampered with subsequent. Heard, without commenting upon the demoneur of
the witness at this stage. I have observed from cheque No.
442349 dated 3.5.1997 the last
zero of the figure written in the column of rupees is separate from the
remaining four zeros which are attached with each other in the same flow."
Thereafter, on 21.05.2001 the
cheques were sent to Mr.
Sardara Singh Parmar, Document
Expert, for examination, who in his report dated 21.05.2001 submitted to the
Court, opined as under:- "In view of the reasons stated above, I am of the
opinion that the last figure (0) in above mentioned cheque has not been written
in the continuous process by the same person with the same pen and ink, but it
has been subsequently changed into by adding figure (0) in the original amount
Rs. 40,000/- and it is free hand forgery."
Mr. Sardara Singh Parmar was
examined as DW-3 before the trial court on 13.08.2001 and deposed as under:-
"I am of the opinion that the last figure zero in above mentioned cheque
has not been written in the continuous process by the same person with the same
pen and ink, but it has been subsequently changed into by adding figure zero in
the original amount Rs. 30,000/- and it is free hand forgery. The reasons have
already been given in my report dated 21.5.2001. It consists of 6 pages and it
is Ex.DW3/1. It has been prepared by me signed by me and is correct. One
photograph chart bearing the photograph cheque No. 442345 dt. 5.5.97 is
Ex.DW3/2, one negative is Ex.DW/3."
As noticed above, the Judicial
Magistrate vide his judgment dated 06.02.2002 acquitted the appellant of the
charge under Section 138 of the Act and consequently dismissed the complaint of
The learned Single Judge of the
High Court, after hearing the learned counsel for the parties, recorded the
conviction of the appellant vide order dated 25.01.2007 for an offence under
Section 138 of the Act, which reads as under:- "Lastly, it was contended
by the learned counsel for Sudhir Kumar Bhalla that the figures of Rs.30,000/-
and Rs.40,000/- mentioned in the cheques were interpolated by adding 'zero' to
make the same Rs.3,00,000/- and Rs.4,00,000/-.
He contended that there is
evidence of the handwriting expert to establish the afore-stated fact and the
trial court had rightly dis-believed the claim of Jagdish Chand on this court.
The contention of the learned
counsel for Sudhir Kumar Bhalla is misplaced. The trial court had clearly
fallen in error by ignoring the fact that the cheques were not only filled in
figures, but in words as well, according to which Rs.3 lacs and Rs.4 lacs were
written thereon. Even though, the handwriting expert opined that the zero has
been added in the cheques subsequently, but it was clearly in consonance with
the wishes of Sudhir Kumar Bhalla, who had issued the cheques by depicting the
amounts in words also.
That apart, there is cogent
evidence on record in the shape of original bills and the complete details of
the prices of the goods supplied and the registers of account, which could not
be countered by Sudhir Kumar Bhalla during the course of evidence. In view of
the overwhelming evidence in favour of Jagdish Chand, the findings of the trial
court awarding an acquittal to Sudhir Kumar Bhalla are unsustainable.
On the basis of the above
discussion, it is held that Sudhir Kumar Bhalla, who was one of the partners of
M/s Sudhir Kumar Bhalla & Brothers, Ludhiana, issued the cheques in
question to discharge the liability of his firm and on presentation thereof by
Jagdish Chand and Ramesh Rani, the same were dishonoured. Thus, he had
committed an offence punishable under Section 138 of the Act. This court holds
him accordingly guilty for the same in each of the appeals.
For the reason that the findings
qua interpolation in the cheques in question have been categorically set aside,
the proceedings against Jagdish Chand and Ramesh Rani initiated in the court of
Judicial Magistrate, 1st Class, Ludhiana, pursuant to FIR Nos. 93 and 94 of
1998 registered at Police Station Sarabha Nagar, Ludhiana, which have been
assailed in Criminal Miscellaneous Petitions Nos. 29090-M and 36987-M of 2001,
must, as a logical consequence, fail.
In view of the above, the criminal
appeals and the criminal miscellaneous petitions filed by Jagdish Chand and
Ramesh Rani are accepted. The proceedings taken against Jagdish Chand and
Ramesh Rani in pursuance to FIR Nos. 93 and 94 of 1998 registered at Police
Station Sarabha Nagar, Ludhiana, are also quashed."
On examination of the above-stated
findings of the learned Single Judge in the judgment impugned before us, we
find that the learned Single Judge has not addressed himself on the legal
question raised before him by the appellant that the criminal liability of the
appellant under the provisions of Section 138 of the Act are attracted only on
account of the dishonour of the cheques issued in discharge of liability or
debt, but not on account of issuance of security cheques. The learned Single
Judge has also not given cogent, satisfactory and convincing reasons for
disbelieving and discarding the pre-charge evidence of the appellant
corroborated by the evidence of the expert opinion in regard to the
interpolation in and fabrication of the cheques by adding one more figure '0'
to make Rs.30,000/- to Rs.3,00,000/- and similarly adding one more figure '0'
to make Rs.40,000/- to Rs.4,00,000/-.
In the backdrop of the facts of
these cases, we are of the opinion that the judgments and orders of the High
Court cannot be sustained on the premise that the High Court has not addressed
itself on the above-said two legal questions raised by the appellant and,
therefore, the impugned judgments and orders dated 25.01.2007 and 19.02.2007
are set aside. The interest of justice should be sub-served if the matters are
remitted to the High Court to decide the appeals filed by the respondent
against the appellant and criminal miscellaneous petitions seeking for quashing
the first information reports registered against the respondent and his wife by
the police for commission of the offences stated in FIR Nos.93 and 94 of 1998.
Needless to say that any observation made by us in this judgment shall not be
construed as an expression of opinion on the merits of the cases, which shall
be decided by the High Court on their own merits in accordance with law.
The appeals shall stand disposed
of in the aforesaid terms.