Sneh Lata v. Charanjit Singh

QUORUM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. H.P.S. Bhinder, Advocate, for the petitioner. None for respondent No.1. Ms. Sushma Chopra, Additional Advocate General, Haryana. -.- MOHINDER PAL, J. This revision petition is directed against the judgment dated 5.7.2003 passed by Additional Sessions Judge, Yamuna Nagar at Jagadhri, whereby the judgment of conviction and sentence order dated 8.10.1999 passed by the Judicial Magistrate Ist Class, Jagadhri, convicting the petitioner under -2- Criminal Revision No.1417 of 2003. Section 138 of the Negotiable Instruments Act (hereinafter referred to as `the Act') and sentencing her to undergo rigorous imprisonment for six months and to pay fine of Rs.1,000/- was upheld. The petitioner had raised a loan of Rs.24,440/- from respondent No.1 on 5.11.1993 and executed a pronote and receipt in respect thereto. The petitioner-accused had promised to return the loan amount along with interest at the rate of 1 per cent per month on demand. Respondent No.1 repeatedly approached the petitioner to return the amount. Ultimately, on

5.11.1994, the petitioner issued cheque No.EK-2905 for Rs.24,440/- in favour of respondent No.1 as part payment towards the discharge of her liability. The petitioner instructed respondent No.1 to present the cheque on 3.5.1995. On presentation, this cheque was dishonoured by the concerned Bank and returned with the remarks “Account Closed”. Complainant-respondent No.1 sent notice by way of registered post. However, the petitioner-accused evaded service of notice. A copy of the notice was also sent to the petitioner `Under Postal Certificate' (`U.P.C'), which was received by her on

17.5.1995. The petitioner did not pay the amount of the cheque to the complainant-respondent No.1. Thereafter, the complainant per force filed complaint against the petitioner-accused under Section 138 of the Act. The cheque issued by the petitioner-accused in favour of the complainant-respondent, on presentation before the -3- Criminal Revision No.1417 of 2003. concerned bank, was dishonoured with the remarks “Account Closed”. After the cheque bounced, the complainant served a registered notice through his counsel upon the petitioner-accused. Exhibit P.4, which the `U.P.C' dated 16.5.1995 shows that notice had been sent to the accused-petitioner. In spite of that, the petitioner failed to make payment of the amount mentioned in the cheque. Learned counsel for the petitioner argued that the said cheque was issued in favour of the complainant by the accused as a security as the accused was running the business of organizing Committees and complainant was a member of the same. He argued that the complainant had misused the cheque, which was a post dated one having been issued as a security. Reliance was placed by the learned counsel on the authority reported as Pawan Enterprises v. Satish H. Verma, 2003 (3) RCR (Criminal) 350 wherein a learned Single Judge of the Bombay High Court, while dealing with acquittal of the accused therein, had held that when two views are possible the one in favour of the accused has to be accepted. The trial Court in that case was of the view that the cheque in question had been issued as a security for the balance amount and, therefore, it (trial Court) recorded the finding of acquittal. Such is not the position in this case. The petitioner stands convicted and sentenced by both the Courts below. It has been held in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan, 2000 (1) P.L.R 113 that Court will presume that holder of the cheque received it -4- Criminal Revision No.1417 of 2003. for discharge of any debt or liability and burden is on the accused to rebut the presumption, which the petitioner has not been able to do in this case. In this case, the acts which are components of the offence under Section 138 of the Act i.e drawing of the cheque, presentation of the cheque to the Bank, returning of the cheque unpaid by the drawee Bank, giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and failure of the drawer to make payment within fifteen days of the receipt of the notice, stand proved on record. Learned counsel for the petitioner further argued that the cheque in this case was not presented within six months and, therefore, the provisions of Section 138 of the Act were not attracted in this case. I have given my thoughtful consideration to this argument of the learned counsel for the petitioner, but do not find any merit therein. Sanjay Goel, Clerk, Oriental Bank of Commerce, Jagadhri was examined by the complainant as C.W.2. He stated that the account of the petitioner had been closed on 1.2.1995. He stated that the cheque dated 5.11.1994 was issued by the petitioner. He further stated that this cheque was presented in their bank. After seeing the original memo whereby cheque was returned to the complainant, which is Exhibit P.2, Sanjay Goel (C.W.2) stated that it was issued by their Bank. During cross-examination, he admitted that date 3.5.1995 was mentioned at mark `A' on memo Exhibit P.2. He, however, stated that the cheque, as per `memo return register' was returned to the party on 31.5.1995. -5- Criminal Revision No.1417 of 2003. The admission of this witness that date 3.5.1995 is mentioned on the memo Exhibit P.2 shows that the cheque was presented on 3.5.1995 i.e within six months of its issuance i.e 5.11.1994. Significantly, the petitioner had closed her account on 1.2.1995, which proves the contention of the complainant that the petitioner had asked him to present the cheque 3.5.1995 right because the petitioner had decided to close her account before that date. Learned counsel for the petitioner also pointed out that the complainant had filed a civil suit for recovery and the same stood decreed as the matter had been compromised as per judgment dated 17.5.2003 (Annexure P-1) passed by the Civil Judge (Junior Division), Jagadhri. I have perused the judgment dated 17.5.2003 (Annexure P-1). There is no mention in it about the cheque in question. The facts and circumstances, discussed above, lead to the only conclusion that the petitioner has rightly been convicted by the Courts below. The conviction of the petitioner under Section 138 of the Act is, therefore, confirmed. The sentence imposed on the petitioner also commensurates with the offence committed by her. The impugned sentence order is also confirmed. Resultantly, this revision petition is hereby dismissed. March 02, 2010. ( MOHINDER PAL ) JUDGE