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2009 DIGILAW 317 (PNJ)

Varinder Kumar v. State of Haryana

2009-02-11

KANWALJIT SINGH AHLUWALIA

body2009
JUDGMENT Kanwaljit Singh Ahluwalia, J 1. Smt.Sushila Gupta wife of brother of the petitioner had filed a complaint under Section 138 of the Negotiable Instruments Act (hereinafter to be referred as, `the Act'). She has stated in the complaint that she deposited an amount of Rs.18,000/-vide cheque dated 2.12.1987 with the accused-petitioner. The amount was demanded back. The accused-petitioner refused to pay back the money. Resultantly, she issued a notice on 26.6.1990. Accused-petitioner issued a cheque on 10.4.1991 amounting to Rs.18,000/-. The cheque was presented to the bank. On 18.4.1991 the cheque was returned with the remarks `refer to drawer'. It is stated that accused-petitioner has committed offence under Section 138 of the Act. 2. After the accused was summoned, the complainant led evidence. The trial Court came to the conclusion that offence against the accused-petitioner is made out and accused-petitioner was sentenced under Section 138 of the Act to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/-. In default of payment of fine, the accused-petitioner was to undergo simple imprisonment for 15 days. Aggrieved against the same, an appeal was filed. The appeal was also dismissed as Appellate Court held that there was no infirmity in the order passed by the Chief Judicial Magistrate, Kaithal. 3. Mr.Vinod Bhardwaj, appearing for the petitioner has raised two contentions before me. He has stated that in the present case, cheque was issued on 10.4.1991 for discharge of liability which had accrued on 2.12.1987. Therefore, on the date of issuance of the cheque, debt had become barred by limitation and was not liable to be recovered. He has placed reliance on a Single Bench judgment of Andhra Pradesh High Court in Girdhari Lal Rathi v. P.T.V.Ramanujachari, 2000(2) RCR (Criminal) 50. This contention of counsel for the petitioner cannot be accepted. It has been stated in the complaint that complainant was pursuing for payment of the amount due. Since amount was not being paid, she had to issue a legal notice on 26.6.1990. Therefore, to avoid litigation, accused-petitioner had issued a cheque on 18.4.1991 and it is to be assumed that issuance of the cheque was acknowledgment of the liability due. Therefore, it cannot be stated that liability had become barred by limitation. Further more, the very object of Section 138 of the Act is that the cheque should be issued with object that the same shall be honored. Therefore, it cannot be stated that liability had become barred by limitation. Further more, the very object of Section 138 of the Act is that the cheque should be issued with object that the same shall be honored. The very fact that sufficient amount was not in the account and cheque was returned with the remarks `refer to drawer' so that the cheque was issued only to avoid and evade litigation, therefore, this contention of the counsel is not tenable. 4. It has been further submitted that there was over writing on the cheque, therefore, the same amounts to interpolation and this has been ignored by two Courts below. Counsel for the petitioner has submitted that cheque was dis-honored by the Bank on the ground that there was alteration and cutting. This matter was considered by the Appellate Court below. It held that the cheque Ex.P2 was dis-honored vide memo Ex.P9. 5. The statement of account Ex.P8 revealed that there was an amount of Rs.171.57 paise in the account of the petitioner, therefore, the cheque was dishonored and it was returned with the remarks `refer to drawer'. 6. I find no infirmity in the judgment of the trial Court. Therefore, the judgments of two Courts below are upheld. 7. Counsel for the petitioner has stated that in the present case the cheque was issued on 10.4.1991. Petitioner had already suffered a protracted trial of more than 17 years. Taking into consideration the protracted trial, the sentence awarded upon the petitioner is reduced from six months to three months. The sentence shall run concurrent with sentence which was subject matter of Criminal Revision No.67 of 2001 decided today, vide separate order. 8. With aforesaid modification in the quantum of sentence, the present petition is disposed off.