Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1483 (HP)

Hariman Negi v. Parma Nand

2016-07-26

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. By way of present Criminal Revision Petition filed under Section 397 & 401 of the Code of Criminal Procedure, petitioner has challenged judgment/ order dated 3.8.2009, passed by learned Additional Sessions Judge, Fast Track Court, Shimla (Camp at Rohru) in appeal No.16-R/10 of 2008/06, affirming the judgment dated 13.1.2006, passed by learned Judicial Magistrate Ist Class, Court No.2, Rohru, District Shimla, H.P. in Criminal Case No.13/3 of 2005, whereby present petitioner-accused has been convicted under Section 138 of the Negotiable Instruments Act and has been further sentenced to undergo simple imprisonment for one year and to pay compensation to the tune of Rs. 1,00,000/-. 2. Briefly stated facts as emerge from the pleadings are that respondent No.1 (for short “complainant”) filed a complaint under Section 138 of the Negotiable Instruments Act (for short “Act”) in the Court of learned Judicial Magistrate, Ist Class, Court No.II, Rohru, District Shimla, H.P averring therein that the petitioner (for short “Accused”) issued cheque bearing No.920232, dated 30.8.2004 amounting to Rs. 80,000/- in favour of the complainant drawn at UCO Bank, Rohru. The complainant further averred that he presented the aforesaid cheque on 6.1.2005 in the aforesaid bank for collection but same was returned with the endorsement “insufficient funds”. Since cheque issued by the accused was returned by the bank concern, the complainant got the legal notice dated 19.1.2005 issued to the accused through registered AD, wherein he was advised to make the payment within a period of 15 days from the receipt of the notice. But it appears that neither notice was replied nor any effort was made to make the payment to the complainant by the accused. 3. The learned trial Court on the basis of the material available on record issued summons to accused vide order dated 31.3.2005 with the direction to the accused to put in appearance, Notice of accusation was put to the accused, to which accused pleaded not guilty and claimed trial. 4. Complainant with a view to prove its case examined three witnesses, whereas statement of accused under Section 313 Cr.P.C was also recorded, whereby he admitted that he had only given signed blank cheque. But fact remains that no evidence was led on record by the accused. 5. 4. Complainant with a view to prove its case examined three witnesses, whereas statement of accused under Section 313 Cr.P.C was also recorded, whereby he admitted that he had only given signed blank cheque. But fact remains that no evidence was led on record by the accused. 5. The learned trial Court on the basis of the material available on record by the respective parties held accused guilty of having committed offence under Section 138 of the Act and vide impugned judgment/order dated 13.1.2006 convicted and sentenced the accused, as per the description given hereinabove. 6. Feeling aggrieved and dissatisfied with the impugned Judgment of conviction and order of sentence dated 13.1.2006, passed by learned trial Court, accused approached the court of learned of learned Additional Sessions Judge, Fast Track Court (camp at Rohru) by way of appeal under Section 374 of the Code of Criminal Procedure, however perusal of order dated 3.8.2009, passed by learned Additional Sessions Judge, Fast Trak Court, Shimla suggest that the same was dismissed and accused-convict was directed to surrender before the learned trial Court on 17.8.2009 to undergo the sentence, as awarded by the learned trial Court. 7. In the aforesaid background, present petitioner-accused approached this Court by way of Criminal Revision Petition bearing No.120 of 2009. This Court taking cognizance of the averments contained in the Criminal Revision Petition, admitted the petition for hearing on 31.8.2009 and suspended the sentence imposed by the Court below. 8. Further perusal of the order dated 20.11.2013, passed by this Court suggest that Criminal Revision Petition preferred by the petitioner-accused was also sent to Lok Adalat for amicable settlement, if any. But perusal of order dated 12.12.2015, passed by Chairman of Lok Adalat suggest that neither the petitioner nor his counsel presented themselves before the Lok Adalat and as such, matter was sent back to this Court. Even on 10.5.2016, learned counsel representing the petitioner informed this Court that there is possibility of compromise inter-se the, accordingly, this Court on the basis of the statement having been made by learned counsel for the petitioner, granted two weeks’ time to have instructions in the matter. Thereafter, on 31.5.2016, petitioner again sought time on the pretext that the petitioner is ready and willing to compromise the matter but again when the matter was listed 3.6.2016, learned counsel for the petitioner pleaded no instructions. Thereafter, on 31.5.2016, petitioner again sought time on the pretext that the petitioner is ready and willing to compromise the matter but again when the matter was listed 3.6.2016, learned counsel for the petitioner pleaded no instructions. Accordingly, this Court proceeded to decide the present revision petition on merits on the basis of the material available on record. 9. Close scrutiny of the record made available to the Court clearly suggest that accused had issued cheque bearing No.920232, dated 30.8.2004, amounting to Rs. 80,000/- in favour of the complainant drawn at UCO Bank Rohru. It also stands proved on record that the said cheque was presented for payment to the bank but the same was returned by the bank with the endorsement “insufficient funds”. It also stands proved on record that complainant got the legal notice dated 19.1.2005, issued to the accused through registered AD, wherein due opportunity was given to the accused to make the payment good in terms of the cheque issued by him but no heed whatsoever, was paid to the request/advise of the complainant and as such, he was compelled to initiate proceedings under Section 138 of the Act. 10. While examining the averments contained in the Criminal Revision Petition, this Court had an occasion to examine the evidence adduced on record by the complainant to substantiate his claim with regard to issuance of cheque amounting to Rs. 80,000/- to the accused. 11. Conjoint reading of the statements given by the witnesses adduced on record by the complainant clearly establish that on 30.8.2004 accused had issued cheque No.920232, amounting to Rs. .80,000/- in favour of the complainant. The complainant has also successfully proved on record by leading cogent and convincing evidence in the shape of CW-2, i.e. Laiq Ram, Office Assistant, State Co-operative Bank, Rohru that the cheque Ex.CW1/A was presented in the Co-operative Bank on 6.1.2005 and same was sent for collection to UCO Bank Branch, Rohru, which was returned back with the endorsement “insufficient funds”. CW-2, categorically stated that the memos Ex.CW1/B and Ex.CW1/C were issued from their bank. In his cross-examination, he also admitted that they had informed the cheque holder i.e. complainant with regard to return of cheque by the UCO Bank. 12. Similarly, Sh. CW-2, categorically stated that the memos Ex.CW1/B and Ex.CW1/C were issued from their bank. In his cross-examination, he also admitted that they had informed the cheque holder i.e. complainant with regard to return of cheque by the UCO Bank. 12. Similarly, Sh. V.K. Sharma, Senior Manager, UCO Bank, Rohru stated before the trial Court that the cheque Ex.CW1/A is of their bank and returning memo Ex.CW1/B is also issued from their bank. Bare perusal of statement of CW-3 corroborates the statement given by CW-1, wherein he had stated that he deposited the cheque with the Cooperative bank for collection on 6.1.2005. CW-3 categorically stated that the cheque was sent back to the H.P. Co-operative bank since there were “insufficient funds” in the account of the accused. 13. Close scrutiny of the cross-examination of these witnesses clearly suggest that the petitioner accused was unable to shatter the testimonies of these witnesses adduced on record by the complainant, rather careful perusal of the statements given by CW-1, CW-2 and CW-3, leaves no doubt in the mind of the Court that the accused had issued cheque Ex.CW1/A in favour of the complainant amounting to Rs. 80,000/-, which was ultimately returned by the UCO Bank on the ground of “insufficient funds”. All the complainant witnesses while making their statements before the Court with regard to the averments contained in the complaint have been very consistent, specific and candid and their statements are confidence inspiring and as such, same could not be brushed aside easily. 14. This Court itself after going through the complete record, is unable to differ with the findings returned by the learned trial Court below, whereby present petitioner accused has been held guilty of committing offence punishable under Section 138 of the Act. Further perusal of the order/judgment dated 3.8.2009, passed by learned Additional Sessions Judge, Fast Track Court (Camp at Rohru) Shimla, in appeal preferred by the present petitioner-accused suggest that no findings on merits have been returned by the learned First Appellate Court. But careful perusal of order dated 3.8.2009, passed by learned First Appellate Court suggest that accused-petitioner immediately after filing appeal under Section 374 Cr.P.C against the judgment passed by learned trial Court had been taking time for making payment to the complainant in terms of the judgment passed by the learned trial Court. 15. But careful perusal of order dated 3.8.2009, passed by learned First Appellate Court suggest that accused-petitioner immediately after filing appeal under Section 374 Cr.P.C against the judgment passed by learned trial Court had been taking time for making payment to the complainant in terms of the judgment passed by the learned trial Court. 15. Learned First Appellate Court has specifically recorded in para-3 of its order dated 3.8.2009, the statement given by the accused, wherein he categorically informed the Court that he has already entered into compromise with the complainant Parma Nand and he shall be giving an amount of Rs. 60,000/- in one installment to him on the next date of hearing in the Court. He further stated before the Court that in case he fails to deposit the aforesaid amount by the next date, his appeal may be dismissed and he shall be liable to pay Rs. 1,00,000/- as compensation in terms of the judgment passed by learned trial Court. It also emerge from the order passed by the learned First Appellate Court that repeatedly matter was listed for making payment, if any, but despite several opportunities accused failed to make complete payment as agreed upon by him in his statement recorded on 8.1.2009. Since accused had failed to abide by his statement recorded on 8.1.2009, the learned first appellate Court had no option but to dismiss the appeal. 16. As has been noticed above, even during the pendency of the present criminal revision petition, this court was repeatedly informed that the accused petitioner is ready and willing to compromise the matter and as such, time was granted to the petitioner- accused for doing the needful but no steps whatsoever, were ever taken by the accused for compromise and as such, this Court proceeded to decide the case on merits. 17. Consequently, in view of the detailed discussion made hereinabove, this Court sees no reasons whatsoever, to interfere with the judgment of conviction and sentence passed by the learned trial Court, which has been further upheld by the learned First Appellate Court, as the same appeared to be based on correct appreciation of evidence available on record. 18. At this stage, learned counsel representing the petitioner-accused prayed that the sentence imposed by the Court below is excessive and harsh and as such, same may be reduced and lenient view be taken in favour of the petitioner-accused. 18. At this stage, learned counsel representing the petitioner-accused prayed that the sentence imposed by the Court below is excessive and harsh and as such, same may be reduced and lenient view be taken in favour of the petitioner-accused. Aforesaid prayer made on behalf of the learned counsel for the petitioner deserve outright rejection keeping in view the conduct of the accused-petitioner, who despite undertaking before the First Appellate Court as well as this Court, failed to make the payment as agreed upon by him in terms of his statement recorded on 8.1.2009 and as such, this Court sees no reason to take lenient view in the matter. 19. Needless to say, order dated 31.8.2009, passed by this Court, whereby sentence imposed by the court below was suspended, is hereby vacated and the petitioner-accused is directed to surrender himself before the learned trial court forth with to serve the sentence as awarded by the learned trial Court. Accordingly, petition stands dismissed alongwith pending applications, if any.