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2016 DIGILAW 1470 (HP)

Sardar Singh Kapoor v. Chander Kanta

2016-07-25

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present Criminal Revision Petition under Section 397 read with section 401 of the Code of Criminal Procedure, against the judgment dated 17.9.2010, passed by learned Sessions Judge, Shimla, in Criminal Appeal No.112-S/10 of 2009, titled Sardar Singh Kapoor vs. Smt. Chander Kanta & anr. dismissing the appeal of the petitioner and confirming the judgment of conviction and sentence passed by learned Judicial Magistrate 1st Class, Court No.III, Shimla, District Shimla, in Case No.353-3 of 2006, whereby the petitioner was convicted and sentenced to suffer simple imprisonment for a period of six months for the offence punishable under Section 138 of the Negotiable Instruments Act and to pay compensation to the tune of Rs. 60,000/-, to the complainant. 2. The brief facts giving rise to the present petition are that the complainant/respondent (hereinafter referred to as the ‘complainant’) maintained the complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘Act’) against the accused/petitioner (hereinafter referred to as the ‘accused’) and learned trial Court sentenced the accused, as stated hereinabove, which judgment was affirmed by the learned lower Appellate Court. As per the complainant, on 29.7.2005 accused issued a cheque bearing No.354726, drawn at Syndicate Bank, The Mall, Shimla, to the sum of Rs. 50,000/-, on account of discharge of payment of existing debt/liability payable to the complainant with the assurance at the time of issuance of the said cheque that the same on presentation would be honoured. However, when the complainant presented the said cheque on 18.8.2005, within a period of six months from the date of cheque, the same was bounced and dishonoured for the reasons ‘Insufficient funds’. The intimation regarding the dishonour of said cheque was received by the complainant on 18.8.2005, as a result of which the complainant was compelled to issue a notice through his learned counsel on 24.8.2005 notifying the fact of dishonour of the cheque to the accused, which was duly received by the accused on 25.8.2005, but the accused deliberately and intentionally failed to make payment of the said cheque amount to the complainant. 3. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 4. The complainant has examined herself as CW-1. CW-1 has deposed that the accused borrowed Rs. 50,000/- from her and issued cheque, Ex.CW1/A, on 29.7.2005. 3. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 4. The complainant has examined herself as CW-1. CW-1 has deposed that the accused borrowed Rs. 50,000/- from her and issued cheque, Ex.CW1/A, on 29.7.2005. The said cheque was presented by her with her Banker which in turn sent the same for clearance to the Banker of the accused, but the same was dishonoured for the reason ‘Insufficient funds’. She received the intimation regarding dishonour of cheque, vide memo Ex.CW1/B, on 18.8.2008 upon which she got issued notice on 24.8.2005, Ex.CW1/C, through registered post to the accused. She has proved on record postal receipt, Ex.CW1/D. She has testified the said notice was served upon the accused on 25.8.2005. She has also proved on record acknowledgment, Ex.CW1/E. She has further testified that the loan was given to the accused through cheque on 21.7.2004, regarding which entry was made in the statement of account shown in red ink in the copy Ex.CW1/F, which has been proved by her on the basis of original. She has further testified that even after the service of the legal notice, the accused failed to make the payment of the cheque amount. In cross-examination, she denied that the cheque Ex.CW1/A, was never presented by her for encashment and dishonoured vide memo, Ex.CW1/B. She has refuted the notice Ex.CW1/C, was not served upon the accused. She has further refuted that the accused had no necessity to take loan from her. Further, in her cross examination, the accused has not disputed the fact deposed by her that he had taken a loan of Rs. 50,000/- from her. In his statement under Section 313 of the Code of Criminal Procedure, he has simply shown ignorance about the incriminating circumstances and has stated that he has been falsely implicated. No probable explanation has been rendered on the basis of which he has been falsely implicated by the complainant. He has not disputed that the cheque, Ex.CW1/A, bears his signature or the fact that the cheque bears his handwriting and the same was issued on 29.7.2005. The fact that the legal notice was duly served upon him could not be successfully assailed on behalf of the accused. 5. From the record, it is clear that the accused borrowed Rs. He has not disputed that the cheque, Ex.CW1/A, bears his signature or the fact that the cheque bears his handwriting and the same was issued on 29.7.2005. The fact that the legal notice was duly served upon him could not be successfully assailed on behalf of the accused. 5. From the record, it is clear that the accused borrowed Rs. 50,000/ from the complainant and in lieu of that the accused issued a cheque to her. It also stands proved that the cheque, Ex.CW1/A, was issued by the accused for repayment of the said loan amount and as such, the accused was under legal liability to discharge the debt and when the said cheque was presented for encashment, the same was dishonoured, vide memo Ex.CW1/B and the accused failed to make the payment of cheque amount even after the receipt of the legal notice issued by the complainant. 6. Keeping in view the above facts and circumstances of the case, learned Courts below properly appreciated the evidence on record and rightly came to the conclusion that the accused had committed the breach of Section 138 of the Negotiable Instruments Act, making himself liable for conviction and sentence. Since there is no illegality, impropriety or incorrectness in the impugned judgments, therefore, the revision petition is dismissed being devoid of any merit. Pending applications, if any, shall also stands disposed of.