TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 840
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....essions Judge, Bilaspur, H.P., in Criminal Appeal No. 14/10 of 2016 (C. No. 26/2016), whereby the judgment of conviction, dated 23/25.05.2016, passed by the learned Chief Judicial Magistrate, Bilaspur, District Bilaspur, H.P. in Criminal Case No. 121/3 of 2011, was upheld. 2. The brief facts, giving rise to the present revision petition, can succinctly be summarized as under: H.P. State Co-operative Bank, Beri, through its the then Branch Manager (complainant-Bank) maintained a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 against the accused in the learned Trial Court. As per the complainant, in the month of November, 2008, the accused alongwith his son, namely Dinesh Kumar, made a request to t....
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....rt. However, the learned Appellate Court, vide its judgment dated 12.06.2017, dismissed the appeal preferred by the accused by upholding the judgment of the learned Trial Court, hence the present revision petition maintained by the accused. 3. Heard. The learned counsel for the petitioner has argued that the learned Trial Court as well as the learned Appellate Court without appreciating the evidence, which has come on record, and without appreciating the fact that respondent No. 1 has failed to prove the case against the petitioner convicted him. He has further argued that it is on record that the cheque was issued only as a guarantee and not for the payment of the loan amount. Conversely, the learned counsel for respondent No. 1 has argue....
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....ant-Bank. 7. The accused examined himself as DW-1. He admitted that in the bank he signed the documents, as a guarantor. He feigned his ignorance that his cheque was dishonoured, as there were insufficient funds in his bank account. He has admitted his signatures on the cheque as well as on the acknowledgement. He has further admitted that he did not pay any amount to the complainant-Bank. The accused has also examined his son Dinesh Kumar as DW-2. DW-2 deposed that he took loan from the complainant-Bank and the accused stood as his guarantor. This witness denied that his father has issued any cheque. This witness, in his cross-examination, admitted that on 26.11.2008 he took loan of Rs. 1,50,000/- from the complainant-Bank and his father ....
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.... of the notice, the accused did not do anything, thus his sleeping over the financial liability, in itself is a proof that he admitted his liability to pay the cheque amount. 10. The Hon'ble Supreme Court in Sampelly Satyanarayana Rao vs. Indian Renewable Energy Development Agency Limited, (2016) 10 SCC 458, vide paras 9 to 11, it has been held as under: "9. We have given due consideration to the submission advanced on behalf of the appellant as well as the observations of this Court in Indus Airways with reference to the explanation to Section 138 of the Act and the expression "for discharge of any debt or other liability" occurring in Section 138 of the Act. We are of the view that the question whether a postdated cheque is for "discha....
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....us Airways where the purchase order had been cancelled and cheque issued towards advance payment for the purchase order was dishonoured. In that case, it was found that the cheque had not been issued for discharge of liability but as advance for the purchase order which was cancelled. Keeping in mind this fine but real distinction, the said judgment cannot be applied to a case of present nature where the cheque was for repayment of loan installment which had fallen due though such deposit of cheques towards repayment of installments was also described as "security" in the loan agreement. In applying the judgment in Indus Airways , one cannot lose sight of the difference between a transaction of purchase order which is cancelled and that of ....