Crl. Revn. No. 1071 of 2002 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Revn. No. 1071 of 2002 Date of decision. 27.02.2009 Ashwani Chadha son of Kewal Krishan, 9-A/10, Ahluwalia Building, Ambala Cantt. ....... Petitioner Versus 1. Roop Lal son of Shri Ram Sumrin, Gowl Mandi, Ram Bagh Road, Ambala Cantt. 2. State of Haryana ........ Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Ashwani Talwar, Advocate for the revision-petitioner. Mr. R.P.S. Ahluwalia, Advocate for respondent No.1. Ms. Naveen Malik, Addl. A.G.,Haryana for the respondent-State. **** Sham Sunder, J. This revision petition is directed against the judgment dated 15.03.2002, rendered by the Court of Additional Crl. Revn. No. 1071 of 2002 --2-- Sessions Judge, Ambala, vide which it accepted the appeal against the judgment of conviction dated 09.04.2001, and the order of sentence dated 12.04.2001, rendered by the Court of Judicial Magistrate Ist Class, Ambala Cantt, vide which it convicted the accused (now respondent no.1) for the offence, punishable under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5000/-, which was paid. 2. The facts, in brief, are that the complainant Ashwani Chadha, (now revision-petitioner ) was running a proprietorship firm known as M/s Genuine Finance and Leasing Corporation, Ambala Cantt and was dealing in the business of leasing and advancing. On 14.08.1998 the accused (respondent) approached the complainant for the grant of financial assistance of Rs.75,000/- required for his urgent business need, for two months, to which the latter agreed. In view of the grant of aforesaid financial assistance, the accused executed a pronote in the sum of Rs.75,000/-, in favour of the complainant. He also issued a cheque No. 6642899 dated 13.10.1998, drawn on Canara Bank, Ambala Cantt, for a sum of Rs.75,000/-, from his account, maintained, in the bank, towards the discharge of his liability, with an assurance to pay interest per month regularly. He further assured that the cheque issued by him, would be encashed, on presentation in the bank and that he will not close his account in the bank. The accused, Crl. Revn. No. 1071 of 2002 --3-- however, failed to pay the amount. Ultimately, the cheque was presented, which was dishonoured, on account of the reason that the accused was not having sufficient funds in his account. Thereafter, a legal notice was served upon the accused, but he failed to pay the amount, in question. Ultimately, a complaint under Section 138 of the Negotiable Instruments Act, 1881 (amended upto date ) was filed. 3. After recording the preliminary evidence, the accused was summoned. 4. On his appearance, in the Court, the accused was supplied a copy of the complaint and other relevant documents, under the provisions of law. Notice under Section 138 of the Act was served upon the accused, to which he pleaded not guilty and claimed judicial trial. 5. The complainant, in support of his case, examined himself as CW-1. Vinod Aggarwal, Special Assistant, Bank of Baroda, CW-2, and Mohan Lal, Clerk, Canara Bank, Ambala, CW-3 were also examined. Thereafter,the complainant closed his evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the evidence of the complainant. He pleaded false implication. He, however, examined Tajwinder Singh, DW-1, in his defence. Thereafter, he closed the defence evidence. Crl. Revn. No. 1071 of 2002 --4-- 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by the accused/appellant, which was accepted vide order dated 15.03.2002, by the Court of Additional Sessions Judge, Ambala. 9. Still feeling dis-satisfied, the instant revision petition, was filed, by the complainant/revision-petitioner. 10. I have heard the Counsel for the parties, and have gone through and perused the evidence and record, of the case, carefully. 11. The Counsel for the revision-petitioner, submitted that the Appellate Court, was wrong in coming to the conclusion, that the accused did not commit any offence. He further submitted that once the accused issued the cheque, to discharge his legal liability, and, if the same was dishonoured on presentation, before the bankers, he committed the offence, punishable under Section 138 of the Negotiable Instruments Act. He further submitted that the cheque, in question, was issued by the accused, in relation to his account No. 1367 and not in relation to account No. 1242. He further submitted that even the bank official i.e. Tajwinder Singh, who appeared, as DW-1, stated that no attestation was required, in case of cutting in the account number, in the cheque. He further submitted Crl. Revn. No. 1071 of 2002 --5-- that even no reply was sent by the accused, to the statutory notice, given to him. He further submitted that the judgment of the Appellate Court, being illegal, and perverse, be set aside. 12. On the other hand, the Counsel for respondent no.1 submitted that the cheque Ex.C-1 was issued, in respect of account No. 1242 on 22.5.1995 by the accused. He further submitted that, on the other hand, the complainant himself scored off account No. 1242 from cheque Ex.C-1 and of his own incorporated account No.1367, which also belonged to the accused in the said cheque. He further submitted that this change, in account number, was neither authenticated, by the accused, nor was in his handwriting and, as such, it could not be said that the said cheque in relation to account No. 1367 was issued, to discharge the outstanding legal liability, by him (accused). He further submitted that, under these circumstances, the Appellate Court was right, in coming to the conclusion, that no offence punishable under Section 138 of the Act was committed by the accused. He further submitted that the judgment of the Appellate Court, being legal and valid, deserves to be upheld. 13. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the contentions, raised by the Counsel for the revision- petitioner, being devoid of merit, deserve to be rejected, for the reasons to be recorded hereinafter. The perusal of cheque Ex.C-1, Crl. Revn. No. 1071 of 2002 --6-- which was the subject matter of complaint, clearly goes to show that it was originally issued, in respect of account no. 1242, which was being maintained by the accused. This account number, as is evident, to the naked eye, was scored off and instead thereof account No.1367 was incorporated therein. This cutting was not authenticated by the accused, nor is in his handwriting. Since the complainant was the holder of the cheque Ex.C-1,it was for him, to explain, as to how, account No. 1242 was scored off, and instead thereof, account No. 1367, was incorporated. At the most, it could be said that accused issued cheque to discharge his outstanding liability, in relation to his account No. 1242. Had the cheque been presented, in the bank, in relation to account No. 1242, being held by the accused, and had it been dishonoured, it would have been said that the accused committed the offence punishable under Section 138 of the Act. Since the accused never intended to issue the cheque Ex.C-1, in relation to his account No. 1367 to discharge his outstanding legal liability, mere presentation of the same, in relation to that account number, and dishonour of the same, for insufficient funds, did not fasten any criminal liability upon him. The statement of Tajwinder Singh, DW-1, bank official that the cutting in the account number, on the cheque, in question, did not require any authentication by the accused, is hardly of any consequence. In this case, the question of fastening the criminal liability on the accused, was concerned. Reliance was placed by the Counsel for the Crl. Revn. No. 1071 of 2002 --7-- revision-petitioner on Kbhaskaran v. Sankaran Vaidhyan Balan 1999(4) RCR (Criminal), 309 (SC) and M/s Kusum Ingots & Alloys Ltd. v. M/s Pennar Peterson Securities Ltd. 2000(2) RCR (Criminal) 275(SC), in support of his contention that once the cheque is issued for the discharge of legal liability, and if the same is dishonoured, on presentation, the accused becomes liable for the commission of offence under Section 138 of the Act There is no dispute with the proposition of law, laid down, in case Kbhaskaran's and M/s Kusum Ingots & Alloys Ltd.'s cases (supra), decided by the Apex Court. In these cases, there was no dispute with regard to the cutting of the account number, mentioned in the cheque, in question and incorporation of another account number therein, while the same was in the custody of the holder. No help, therefore, can be drawn, by the Counsel for the revision-petitioner, from the ratio of law , laid down in the aforesaid cases. It is, settled principle of law that while exercising revisional jurisdiction, the Court cannot revaluate and re-appreciate the evidence, until and unless it comes to the conclusion, that the findings arrived at, by the Appellate Court, which accepted the appeal, were in any way illegal, perverse or erroneous. In the instant case, the findings, arrived at, by the Additional Sessions Judge, Ambala to the effect that the accused did not commit any offence under Section 138 of the Act, as he had not issued cheque Ex.C-1 in relation to account No.1367for the discharge of legal liability, but on the other hand, he only issued Crl. Revn. No. 1071 of 2002 --8-- cheque in relation to account No. 1242, being based on the correct appreciation of evidence, and law, on the point, do not suffer from any infirmity or illegality. The judgment dated 15.03.2002, rendered by the Appellate Court, deserves to be upheld. The submission of the Counsel for the revision-petitioner, being without merit, is rejected. 14. For the reasons recorded, hereinbefore, the revision-petition filed by Ashwani Chadha, complainant, is dismissed. The judgment dated 15.03.2002, rendered by the Appellate Court, vide which the appeal was accepted against the judgment of conviction and the order of sentence, rendered by the trial Court, is upheld. (SHAM SUNDER) February 27, 2009 JUDGE dinesh