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2010 DIGILAW 2656 (PNJ)

Joginder Ram v. Davinder Kumar

2010-09-15

SABINA

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JUDGMENT Sabina, J. Petitioner-Joginder Ram was convicted for an offence under Section 138 of the Negotiable Instruments Act, 1881 (`the Act' for short) by the Judicial Magistrate 1st Class, Phagwara vide judgment dated 10.10.2003 in a complaint filed by complainant-Davinder Kumar.-respondent. Vide order of even date, petitioner-accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/-under Section 138 of the Act. Aggrieved by the same, petitioner preferred an appeal and the same was dismissed by the Sessions Judge Kapurthala vide judgment dated 3.11.2004. Hence, the present revision petition has been filed by the petitioner. Brief facts of the case, as noticed by the appellate Court in para 2 of its judgment, are reproduced here in below:- “2.The facts, in brief, are that the accused took a cash loan of Rs.50,000/-from the complainant, on 10.9.999 and in lieu thereof, executed the pronote and receipt of the even date, in his favour. He also issued a cheque worth Rs.50,000/-, dated 10.2.2000, bearing No. 367742, drawn on the State Bank of Patiala, Goraya, in favour of the complainant, to discharge his outstanding liability. The said cheque was duly signed by the accused, in the presence of the complainant. When the said cheque was presented before the Banker, it was dishonoured with the report “Insufficient funds” in the account of the accused. A legal notice was issued to the accused, on 9.3.2000, through his counsel. The said notice was duly served upon the accused on 11.3.2000. The accused was called upon through the said notice, to make the payment of the cheque amount, within 15 days from the receipt thereof. He, however, did not make the payment, within the stipulated period. Thereafter, a complaint under Section 138 of the Negotiable Instruments Act, (Amended up-to-date), was filed.” Learned counsel for the appellant has submitted that the complainant had failed to establish that the cheque in question has been issued qua legal liability. In fact, there were business dealings between the parties and cheque in question had been misappropriated by the complainant. In fact, the cheque in question had been materially altered by the complainant and hence, the cheque in question was rendered void. Learned counsel for the respondent, on the other hand, has submitted that the complainant had been successful in proving his case. In fact, the cheque in question had been materially altered by the complainant and hence, the cheque in question was rendered void. Learned counsel for the respondent, on the other hand, has submitted that the complainant had been successful in proving his case. The cheque in question had been issued by the petitioner in his individual capacity after taking loan from the complainant. After hearing the learned counsel for the parties, I am of the opinion that the instant petition deserves dismissal. The cheque in question is Exhibit P1. A perusal of the same reveals that the same was issued by the petitioner-Joginder Ram in favour of the complainant for a sum of Rs.50,000/-on 10.2.2000. A perusal of the cheque does not reveal that the same has been altered to render it void. The cheque in question was returned back by the Bank after it was presented for encashment with remarks "in sufficient funds". The complainant, thereafter, issued a notice through his counsel to the petitioner, Exhibit P10. But despite the receipt of the said notice, petitioner failed to pay the cheque amount in question to the complainant and, hence, the complaint in question was filed. The cheque in question was not issued by the petitioner in favour of M/s Guru Nanak Enterprise Model Town Phagwara but it was issued in favour of the complainant in his individual capacity. In these circumstances, it cannot be said the that the cheque in question had been issued by the petitioner to the complainant as a partner of the firm. Since the cheque in question had been issued by the petitioner in his individual capacity in favour of the complainant, the same cannot be said to have been issued qua any business transaction. The cheque in question has been filled up in english, whereas, the petitioner has signed the same in punjabi. This does not lead to the inference that the cheque is not legal and valid. Once the petitioner has signed the cheque in question, it leads to the presumption that it had been issued by the petitioner to discharge an outstanding liability. Petitioner had,however, failed to rebut the said presumption. The receipts (Exhibits D1 to D6) issued by M/s Guru Nanak Enterprises, Model Town Phagwara cannot be said to have any concern with the cheque in question. Petitioner had,however, failed to rebut the said presumption. The receipts (Exhibits D1 to D6) issued by M/s Guru Nanak Enterprises, Model Town Phagwara cannot be said to have any concern with the cheque in question. The petitioner might have been having some dealings with M/s Guru Nanak Enterprises Model Town Phagwara, a partnership firm and might have been contributing some amount towards Committees. However, the complainant had been successful in proving that the cheque in question had been issued by the petitioner in discharge of liability i.e. repayment of loan for a sum of Rs. 50,000/-in his favour. Both the Courts below, after carefully going through the evidence on record, have ordered the conviction and sentence of the petitioner under Section 138 of the Act. The reasons given by both the Courts below are sound reasons. No ground for interference is made out. Dismissed.