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2018 DIGILAW 1924 (HP)

Karan Soni v. Gaurav Goel

2018-11-02

DHARAM CHAND CHAUDHARY

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JUDGMENT Dharam Chand Chaudhary, J. - This petition was called in the prelunch session, however, learned counsel representing the convict-petitioner did not turn up, hence it is now recalled in the post-lunch session. It is 3.00 p.m., and again there is no appearance on his behalf. 2. The record reveals that learned Additional Chief Judicial Magistrate, Court No.2, Shimla after holding full trial in a case registered as Case No.2399-3 of 14/12 has convicted the petitioner for the commission of offence punishable under Section 138 of the Negotiable Instruments Act. Consequently, he has been sentenced to undergo rigorous imprisonment for a period of six months and also to pay the compensation to the tune of Rs. 7,40,000/-. The judgment has been affirmed by learned lower appellate Court vide judgment dated 11.8.2017 passed in Criminal Appeal RBT No.26-S/10 of 2017/16, under challenge before this Court in this petition. 3. The notice to the respondentcomplainant could not be issued for want of the steps which were required to be taken by the convict-petitioner. 4. It is worth mentioning that the petition when listed in the Court on 27.10.2017, learned counsel has stated on instructions that the convictpetitioner is ready and willing to pay the amount in question and also the compounding fee in terms of the judgment of the apex Court passed in Damodar S. Prabhu vs. Sayed Babalal H. , (2010) 5 SCC 663 . Notice was ordered to be issued to respondent-complainant. In the application, Cr.MP No.1157 of 2017, vide order passed on that day, the sentence was suspended subject to furnishing personal bond by the convict petitioner in the sum of Rs. 25,000/- with one surety in the like amount to the satisfaction of learned trial Court within two weeks. He, however, did not turn up thereafter. 5. On 8.12.2017, the matter when again came to be listed, it was noticed that the convictpetitioner has not complied with the order, passed on 27.10.2017. On that day, while extending the time to do the needful for a further period of four weeks, it was observed that on his failure to do so, the interim order shall stand vacated and the judgment under challenge become executable forthwith. Learned counsel had also undertaken to take steps for the service of respondents within two days. On that day, while extending the time to do the needful for a further period of four weeks, it was observed that on his failure to do so, the interim order shall stand vacated and the judgment under challenge become executable forthwith. Learned counsel had also undertaken to take steps for the service of respondents within two days. Nothing of the sort, however, have taken place, as neither the convict-petitioner had furnished the bail bonds nor deposited the amount in question and the compounding fee, as directed. Irrespective of order dated 8.12.2017 and vacation of the interim order on 11.1.2018 when the matter again listed in the Court, a further period of six weeks was granted to report compliance to the orders dated 27.10.2017 and 8.12.2017, again with the stipulation that in case the needful is not done within the time granted, the interim order will stand vacated automatically. This order reads as follows:- "Orders dated 27.10.2017 & 8.12.2017 have not been complied with. Needful be positively done within a period of six weeks, failing which, interim order dated 27.10.2017 shall automatically stands vacated. List on 20.4.2018" 6. The matter when came to be listed on 20.4.2018, the time was extended by one week more to comply with the earlier order failing which the interim order passed in this petition shall stand vacated automatically. This order also reads as follows: " Learned vice counsel appearing for the petitioner states that not only steps for service of respondent but order dated 27.10.2017 shall positively be complied with within a period of one week. As such time to comply with the earlier orders, including order dated 11.1.2018, is extended by one week, failing which all interim orders passed in this petition shall automatically stands vacated. List after one week." 7. Now the period over six months has expired even from 20.4.2018 also, however, it is not known that the convict-petitioner has furnished the bail bonds and deposited the amount in question as directed or not. Even steps for service of the respondent-complainant have also not been taken. It is in this backdrop this Court has proceeded to decide the petition on merits. 8. The facts in a nut-shell are that the convict-petitioner and his father are dealing with cloth business. The respondent-complainant is the wholesaler, used to supply the cloth and readymade garments to them. Even steps for service of the respondent-complainant have also not been taken. It is in this backdrop this Court has proceeded to decide the petition on merits. 8. The facts in a nut-shell are that the convict-petitioner and his father are dealing with cloth business. The respondent-complainant is the wholesaler, used to supply the cloth and readymade garments to them. The convict-petitioner on account of non-payment of the price of cloths and ready-made garments purchased from the respondent-complainant holds liability to the tune of Rs. 7,30,000/- to him. In order to discharge the said liability, the convict-petitioner has issued Cheque No.387606, dated 15.12.2011,drawn at State Bank of India, Sanjauli Branch. The cheque, however, when presented got dishonoured and returned with the remarks ''Funds Insufficient''. The complainant issued legal notice dated 31.1.2012, asking the accused to pay the cheque amount within a period of 15 days from the date of receipt thereof. The notice was sent on both addresses of the accused. The legal notice sent on the residential address was received back unclaimed whereas that on the shop address was neither received unclaimed nor duly acknowledged, therefore, the complainant having presumed that the notice was received by the convict-petitioner on the shop address and he failed to pay the cheque amount within the stipulated period, therefore, preferred the complaint with a prayer to punish him for the commission of the offence punishable under Section 138 of the Act. 9. Learned trial Judge, on the basis of the preliminary evidence produced by the complainant and having satisfied prima facie with the commission of alleged offence, summoned him. Notice of accusation under Section 138 of the Act was also put to him to which he pleaded not guilty. The complainant has stepped into the witness box as CW-1 and also produced in evidence the cheque Ex.CW-1/A, memo showing that cheque was dishonoured, Ex. CW-1/B, Legal Notice Ex.CW-1/C, postal receipts Ex.CW-1/D and Ex. CW-1/E. Notice, which was addressed to the convict-petitioner, on his residential address was received back unclaimed Ex.CW-1/F. The complainant has also examined Ravi Kathial CW-2, the accountant, Dena Bank, Sanjauli, who has supported the case of the complainant in toto. 10. CW-1/B, Legal Notice Ex.CW-1/C, postal receipts Ex.CW-1/D and Ex. CW-1/E. Notice, which was addressed to the convict-petitioner, on his residential address was received back unclaimed Ex.CW-1/F. The complainant has also examined Ravi Kathial CW-2, the accountant, Dena Bank, Sanjauli, who has supported the case of the complainant in toto. 10. The convict-petitioner in his statement recorded under Section 313 Cr.P.C., has denied the issuance of the cheque Ex.CW-1/A and the signatures thereon, however, as per the plea he raised in his defence the cheque was forcibly taken from him by the complainant from the shop of his mother. He appeared in the witness-box as CW-1 and admitted his signature on the cheque Ex.CW1/B. Learned trial Magistrate, on the basis of the evidence available on record and taking into consideration the law applicable has held the convict guilty for the commission of the offence punishable under Section 138 of the Act. He has therefore, been convicted and sentenced as noticed at the very outset. 11. Learned lower appellate Court in appeal has affirmed the judgment passed by learned trial Court and dismissed the appeal. 12. The legality and validity of the impugned judgment has been questioned in the present petition on the grounds inter alia that the evidence available on record has not been appreciated in its right perspective. The discrepancies, contradictions and variations in the evidence produced by the complainant are stated to be erroneously ignored. The complainant allegedly failed to prove his case beyond all reasonable doubt. 13. At the out set, it is worth mentioning here that the concurrent findings recorded by both Courts below, on appreciation of the facts and evidence available on record, should normally not call for interference by the High Court in the exercise of its limited revisional jurisdiction. Such power, of course, can be exercised but only in a case of miscarriage of justice on account of illegality or irregularity committed by Courts below or if there is an error apparent on the face of the record. The present is not a case of this nature as both Courts below have neither committed any illegality nor irregularity while allowing the complaint and recording the findings of conviction against the accused. 14. The present is not a case of this nature as both Courts below have neither committed any illegality nor irregularity while allowing the complaint and recording the findings of conviction against the accused. 14. In view of the evidence produced by the complainant and own admission of the convictpetitioner that the cheque Ex.CW-1/A bears his signature, nothing else was required to hold him guilty because in view of the signature on the cheque, it can reasonably be believed that the same was issued by him alone. The plea in defence that the complainant procured the same forcibly behind his back from the shop of his mother taken by him is nothing but a bundle of lie being not supported by any cogent and reliable evidence. As a matter of fact, in a case under Section 138, the initial burden, no doubt, is upon the complainant, which in the case in hand, has been discharged by him successfully. He has proved the case as set out in the complaint while in the witness-box. He has also proved the cheque Ex.CW-1/A. The return memo Ex.CW-1/B, legal notice Ex.CW-1/C and postal receipts Ex.CW-1/D & Ex. CW-1/E have been proved on record. CW-2 Ravi Kathial has proved the case of the complainant qua the cheque when presented for encashment, returned with the remarks ''insufficient funds''. He has also proved the memo Ex.CW-1/B. 15. The convict-petitioner though had stepped into the witness-box as DW-1, however, failed to prove as to why he has kept the signed cheque in the shop from where it was allegedly taken by the complainant from his mother. The present, as such, is a case where both Courts below have appreciated the evidence available on record in its right perspective while holding the petitioner guilty of the offence punishable under Section 138 of the Act. The present is not a case where it can be said that any illegality and irregularity committed by both Courts below has resulted in serious miscarriage of justice to the convictpetitioner. 16. On the other hand, irrespective of the sentence passed against him, suspended by this Court, he not only failed to furnish the personal bond, to take steps for the service of respondentcomplainant despite the period of over one year is lapsed, but also failed to deposit the amount of compensation. 16. On the other hand, irrespective of the sentence passed against him, suspended by this Court, he not only failed to furnish the personal bond, to take steps for the service of respondentcomplainant despite the period of over one year is lapsed, but also failed to deposit the amount of compensation. Such acts and conduct of the convict-petitioner itself speak in plenty about his criminal mind setup. Being so, there is no merit in this petition and the same is accordingly dismissed. The convict-petitioner is directed to surrender before the trial Court to serve out the sentence. An authenticated copy of this judgment be sent to learned trial Court for compliance.