Crl. Revision No. 706 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 706 of 2008 Date of decision: February 25, 2011 Karamjit Singh ...Petitioner Versus Sanjog Wire & Cable Industries (HUF) ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Anil Chawla, Advocate, for the petitioner. Mr. VK Sandhir, Advocate, for the respondent. GURDEV SINGH, J. This revision petition by Karamjit Singh is directed against the judgment dated 3.3.2008 passed by the Additional Sessions Judge, Amritsar, vide which he dismissed the appeal preferred by the accused against the judgment dated 3.2.2007 passed by the Judicial Magistrate Ist Class, Amritsar, convicting him for the offence under Section 138 of the Negotiable Instrument Act 1881 (hereinafter referred to as 'the Act') and sentencing him to undergo rigorous imprisonment for a period of two years and to pay fine of `2,000/- and in default thereof to further undergo rigorous imprisonment for two months and also directing him to pay the cheque amount as compensation to the complainant. The complaint was filed against the accused by Sanjog Wire & Cable Industries, Hindu Undivided Family, through its Karta, Naranjan Crl. Revision No. 706 of 2008 2 Singh. It has been contended therein that the complainant is dealing in the manufacturing and supply of super enamelled copper wire etc. and the accused is also involved in the same business. On 6.7.2002, he purchased super enamelled copper wire (hereinafter referred to as 'the wire') worth `95,000/- vide invoice No. 69 dated 7.7.2002 and the same was duly supplied to him. The price was to be paid within 10 days from the date of the purchase of the goods. To discharge his liability, the accused issued a cheque of `10,000/-, which was got encahsed on 10.7.2002. Second order dated 13.7.2002 was placed by him for purchasing 1285 kgs of wire, vide invoice No. 73 dated 14.7.2002 worth `2,30,675.50 paise. In discharge of his liability, in respect of both these dealings, he issued cheque No. 886031 dated 14.7.2002 of `3,15,000/- drawn on Punjab and Sind Bank, Amritsar, and assured the complainant that he was having sufficient funds in his account and the cheque would be encashed on presentment. Believing that assurance, the cheque was presented by the complainant for encashment through his banker State Bank of Patiala but the same was dishonoured, vide memo dated 19.7.2002 on account of insufficient funds in the account of the accused. He served a legal notice upon the accused through his counsel by means of a registered post calling upon him to make the payment of the amount of the cheque, but he failed to do so. The complainant produced preliminary evidence, on the basis whereof the accused was summoned to stand his trial for the offence under Section 138 of the Act. On his appearance in the court, notice of the offence was given to him to which he pleaded not guilty and claimed trial. To succeed in the complaint, the complainant examined himself as PW-1. Thereafter, statement of the accused was recorded under Section 313 of the Criminal Procedure Code, in Crl. Revision No. 706 of 2008 3 which all the incriminating circumstances appearing against him in the complaint were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He stated that he was not dealing in the cables and had not dealings with the complainant. He is runniing a nursery for the last 15 years. Three blank cheques, including the cheque in dispute, were given to one Amarjit Singh Bhalla and his wife Pinky, in the presence of Joginder Singh, Dalbir Singh and Harjit Singh, as he had been dealing with them regarding committees. Those cheques were not signed by him. He had given an application to the Officer in-charge of Police Station Sultanwind, SSP, Amritsar and other authorities against those two persons and the complainant. When he was called upon to enter on his defence, he examined Avtar Singh (DW-1), Kulbir Singh (DW-2), Joginder Singh (DW-3) and Harjit Singh (DW-4) in his defence. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the accused that the accused specifically took up the plea that he had given three totally blank cheques to Amarjit Singh Bhalla and his wife Pinky, which included the cheque in dispute also, in respect of the committees by way of security and a number of witnesses were examined by the accused in his defence for proving that fact. No reasons whatsoever were recorded by the trial court or the appellate court, while discarding that defence evidence, which fully rebuts the evidence produced by the complainant. It is very much apparent to the naked eye that the columns of the cheques have been filled up subsequently and even purported signatures of the accused on the cheque is in different ink. No document expert was examined by the complainant for Crl. Revision No. 706 of 2008 4 getting the alleged signatures on the cheque compared with the admitted signatures of the accused. The findings so recorded by the trial court and upheld by the appellate court are perverse and are result of misreading and non-reading of the evidence so produced by the accused. The complainant has not been able to prove the guilt of the accused beyond reasonable doubt and he is entitled to acquittal. The evidence of all the defence witnesses examined by the accused was given by way of their affidavits and their examination-in-chief was never recorded in the court. According to Section 145 of the Act, the evidence of the complainant may be given on affidavit and may subject to all just exceptions be read in evidence in the trial. However, no such statutory right has been given to the accused to give his defence evidence by way of affidavit. The provisions of this section came up for consideration before the Hon'ble Supreme Court in M/s Mandvi Co-op Bank Ltd. Versus Nimesh B. Thakore 2010 (1) RCR (Criminal) 681. It was held therein that the complainant has a right to give his evidence on affidavit and the accused has the right to cross-examine him and he cannot insist that the complainant should come in the witness box and give deposition in examination-in-chief over again. It was also held that no such right to give evidence on affidavit is available to the accused. Therefore, all the evidence produced by the accused by way of affidavits cannot be looked into. Re-appreciation and re-appraisal of the evidence, while exercising the revisional jurisdiction, is not permissible unless the court comes to the conclusion that the findings recorded by the trial court or the appellate court are perverse or illegal or based on misreading of evidence or no evidence. It is very much apparent from the submissions so made by the Crl. Revision No. 706 of 2008 5 counsel for the accused that he wants this court to re-appreciate the evidence, which is not permissible. There is no such misreading of evidence by the trial court or the appellate court nor it can be said that the findings so recorded suffer from perversity or illegality. No such circumstance or fact could be elicited by the accused during the cross-examination of the complainant, on the basis of which it may be held that he is a witness not worthy of reliance or which may in any way make his defence probable. It was stated by the complainant in his affidavit that the cheque bears the signatures of the accused. He also deposed that the notice was sent to the accused, which was replied by him. That reply was proved on record as Ex. P.11. It is not mentioned in the reply that the cheques so given by the accused to Amarjit Singh Bhalla and Pinky were not signed by him. It is mentioned therein that the cheques were given to those persons, who stood guarantor for lifting of committee by him. There was no question of giving unsigned cheques if those were given by way of guarantee. The story putforward by the accused that the cheque in dispute does not bear his signatures is afterthought. When the complainant produced direct evidence for proving his signatures on the cheque, it was not obligatory for him to examine a document expert for proving the same. The accused had the later opportunity and he could have examined document expert to get his alleged signatures on the cheque compared with his admitted signatures. No such step was taken by him. There is no ground for upsetting the well reasoned findings of conviction recorded by the trial court and upheld by the appellate court. It was also submitted by the learned counsel for the accused that he had already undergone sentence of imprisonment for a period of two Crl. Revision No. 706 of 2008 6 months and the sentence of imprisonment so imposed upon him be reduced to the period already undergone. In this case, the trial court has also imposed compensation upon the accused to the extent of amount of the cheque. That compensation has not been paid so far. According to the learned counsel for the accused, the accused is serious to pay the amount of the cheque to the complainant and he will be doing so within the period to be fixed by this court. Keeping in view that fact, the sentence of imprisonment so imposed upon the accused is reduced to the period already undergone by him. He shall pay to the complainant or deposit in the court the amount of compensation i.e. ` 3,15,000/- within a period of three months of the passing of this judgment, failing which this revision shall be deemed to have been dismissed. February 25, 2011 (GURDEV SINGH ) prem JUDGE