Raj Kumar Anand v. Yadwinder Singh

Mr. Kanwaljit Singh, Senior Advocate, assisted by Ms. Sukhwinder Kaur, Advocate. Mr. P.P. S. Duggal, Advocate, T.P.S. Mann, J. The present revision is directed against the conviction of the petitioner under Section 138 of the Negotiable Instruments Act, in short 'the Act', and sentence of rigorous imprisonment for six months, a fine of Rs.5,000/- and in default of payment of fine, further rigorous imprisonment for 3 months, as ordered by Additional Chief Judicial Magistrate, Amritsar and upheld in appeal by Sessions Judge, Amritsar. A complaint under Section 138 of the Act was filed by Yadwinder Singh-respondent against the petitioner wherein it was averred that he had given a loan of Rs.25,000/- to the petitioner for the purpose of business of his firm M/s Raj Food Industries. The said amount was in the nature of debt due against the petitioner and his firm M/s Raj Food Industries of which he was the proprietor and responsible for the conduct of its business. In discharge of the debt and liability of his firm, the petitioner Crl. Revision No.365 of 2003 -2- issued a cheque on 25.10.1996, drawn on State Bank of India for an amount of Rs.25,000/- in favour of the respondent. The petitioner assured the respondent that there were sufficient funds in the account and the cheque would not bounce or dishonoured by his bank. The cheque was presented by the respondent through his banker i.e. State Bank of Patiala for clearance but the same was returned unpaid by the said bank vide its memo dated

21.04.1997 with the remarks “ not arranged for” The respondent served 15 days' notice dated 05.05.1997 upon the petitioner through registered A.D. cover and under postal certificate. The notice was received by the petitioner on 10.05.1997, but despite the same the petitioner did not pay any amount to the respondent. Accordingly, it was alleged that the petitioner had committed an offence punishable under Sections 138/141 of the Act read with Section 420 I.P.C. After recording preliminary evidence led by the respondent, Additional Chief Judicial Magistrate, Amritsar, vide order dated

06.02.1998 summoned the petitioner to stand trial under Section 138 of the Act. The petitioner then put in appearance in the Court and was released on bail. Notice of accusation under Section 138 of the Act was served upon the petitioner to which he pleaded not guilty and claimed trial. In support of his case, the respondent examined himself as PW1, PW2-Shangara Singh and PW3- Wasir Masih. When the petitioner was examined under Section 313 Cr.P.C. he denied the allegations that appeared in the prosecution evidence against him. He pleaded false implication. In his defence the petitioner examined DW1 Deepinder Singh and DW2 Ranjit Kaur, the son and wife, respectively, of the respondent besides examining DW3 Inder Mohan Wadhwa, DW4 Chander Shekhar, Crl. Revision No.365 of 2003 -3- DW5 Inderjit and his Clerk-cum-Cashier Vijay Kumar as DW6. After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court came to a conclusion that the respondent had been able to prove beyond reasonable doubt that the petitioner had committed an offence punishable under Section 138 of the Act. Accordingly, he was convicted and sentenced, as mentioned above. Learned counsel for the petitioner has submitted that though the petitioner had borrowed an amount of Rs.25,000/- from the respondent yet he had already returned the same along with interest. The cheque in question was never issued by the petitioner in favour of the respondent for the return of the loan amount but it was only given by way of collateral security. The factum of repayment of the loan amount has been admitted by DW1-Deepinder Singh and DW2 Ranjit Kaur, the son and wife, respectively, of the complainant. Therefore, the conviction and sentence of the petitioner under Section 138 of the Act is unsustainable. It is an admitted fact that the cheque in question was issued by the petitioner in favour of the respondent. When the petitioner was examined under Section 313 Cr.P.C., he admitted it to be correct that he had issued the cheque in question in favour of the respondent but he did not mention that the cheque had been given by way of collateral security regarding the loan advanced by the wife and the son of the respondent. It was only stated that the loan taken from the wife and the son of the respondent had been returned back. Though DW1 Deepinder Singh and DW2 Ranjit Kaur deposed to the effect that the loan advanced by them in favour of the petitioner already stood returned yet in her statement DW2 Crl. Revision No.365 of 2003 -4- Ranjit Kaur clearly stated that the present case had no concern with the transaction of the advancement of loan by her to the petitioner and it was an independent case. Therefore, the plea of the petitioner that the cheque in question was issued as collateral security cannot be entertained and appreciated once again, and that too, in a revision. On the other hand, both the courts below concurrently found that it was the petitioner who had obtained an amount of Rs.25,000/- from the respondent as loan and in discharge of his liability he had issued the cheque in question which cheque was, however, returned unpaid by the banker of the petitioner with the remarks “ not arranged for”. After the return of the cheque in question by his banker, the respondent issued the required notice to the petitioner on 05.05.1997 calling upon him to pay the entire amount. As per postal receipts Ex.P4 and Ex.P5, the notice was dispatched on 05.05.1997. The notice was received by the petitioner on 10.05.1997, as is apparent from the acknowledgement receipt Ex.P6. Despite the same, the petitioner did not pay the cheque amount to the respondent within the stipulated period of 15 days and, thus, cause of action arose to the respondent on 25.05.1997. He then filed the complaint in the Court of the Illaqa Magistrate on 04.06.1997, which was within the period of limitation. In view of the above, no case is made out for any interference in the conviction of the petitioner for the offence under Section 138 of the Act. The appeal filed by the petitioner against his conviction and sentence was dismissed by the lower Appellate Court on 11.02.2003 and simultaneously, the petitioner was taken into custody. He then filed the Crl. Revision No.365 of 2003 -5- present revision in which he was granted the concession of bail on

01.05.2003. Thus, he had remained behind the bars for a period of about two months and twenty days as a convict out of the substantive sentence of six months imposed upon him. He has been facing the agony of criminal prosecution for the last more than 12 years as he had put in appearance before the trial Court for the first time on 28.04.1998. Taking into consideration the totality of the circumstances the Court is of the view that no useful purpose would be served by sending the petitioner behind the bars once again for undergoing the remaining sentence of imprisonment. Ends of justice would be squarely met if the substantive sentence of the petitioner is reduced to that already undergone by him. However, in addition to the fine already imposed upon the petitioner, he can be required to pay an amount of Rs.20,000/- as compensation to the respondent. Resultantly, the conviction of the petitioner for the offence under Section 138 of the Negotiable Instruments Act is maintained. However, his substantive sentence of imprisonment is reduced to that already undergone by him. The sentence of fine alongwith its default clause is maintained. In addition, the petitioner shall deposit an amount of Rs.20,000/- with the trial Court, so as to be paid as compensation to the respondent. In the event of non-deposit of the compensation amount, he shall be required to undergo rigorous imprisonment for a period of 3 months.

10.08.2010 sonika The revision is, accordingly, disposed of. (T.P.S. Mann) JUDGE Crl. Revision No.365 of 2003 -6- FILE RELATES TO ELECTRICITY BILL AND RECEIPT IN REGARD TO HOUSE NO.1402/B, SECTOR 19, CHANDIGARH IN FAVOUR OF SH. R.K. SHARMA. FILE RELATES TO WATER BILL AND RECEIPT IN REGARD TO HOUSE NO.1402/B, SECTOR 19, CHANDIGARH IN FAVOUR OF SH. R.K. SHARMA. FILE RELATES TO TELEPHONE RECEIPT FOR 9876547755 IN FAVOUR OF SH. R.K. SHARMA.