Crl. Rev. No. 1536 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 1536 of 2004 (O&M) Date of decision:- 13.1.2011 Amarjit Singh ... Petitioner Versus M/s Firstcity Credit & Leasing Ltd. & Anr. ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. H.S.Bhullar, Advocate, for the petitioner. Gurdev Singh, J (oral) Complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act') was filed against the present petitioner/accused by the complainant- M/s Firstcity Credit Leasing Limited & Co., through its Field Officer – Maninder Pal Singh. After the trial, he was convicted by the Judicial Magistrate First Class, Chandigarh and was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of `3000/- and in default thereof to undergo rigorous imprisonment for a period of one month. He preferred an appeal against that conviction and sentence, which was dismissed by the Additional Sessions Judge, Chandigarh. Now, he has come up with the present revision petition for setting aside his conviction and sentence. The facts as projected in the complaint are that the accused is sole proprietor of M/s Sonu Enterprises and approached the complainant for loan. The loan was accordingly advanced, which was to be repaid by him in installments. The arrangement made between them worked for some time Crl. Rev. No. 1536 of 2004 (O&M) -2- and thereafter, he started making default in re-payment of the loan. To discharge that loan he issued cheque No. 224225 dated 16.8.1992 for sum of `5 lakhs drawn on Bharat Overseas Bank Limited and assured the complainant that on presentment of cheque to his banker the same would be honoured. The second cheque dated 16.11.1992 for `7,19,200/- was issued by him, which was drawn on Central Bank of India, Chandigarh. However, both the cheques on presentment to the respective bankers were dishonored on account of insufficient funds in the accounts of the accused. After the receipt of the memo of dishonuoring of cheques dated 17.11.1992, a registered notice dated 20.11.1992 was served upon him asking him to make the payment of the cheques within 15 days, but he failed to do so and as such committed the aforesaid offence. On the basis of the preliminary evidence produced by the complainant, the accused was summoned to stand his trial by the trial Court. On his appearance before that Court, notice of the offence under Section 138 of the Act was served upon him, to which he pleaded not guilty and claimed trial. To prove his guilt the complainant examined – Sunil Madan PW1, Jatinder Iqbal Singh, Clerk PW2, Avtar Singh PW3, Shammi Arora PW4 and Harcharan Singh PW4. After the complainant closed his evidence, the accused was examined and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied those circumstances and pleaded that no cheque was issued by him and he was not under any legal libaility to issue such a cheque and that he Crl. Rev. No. 1536 of 2004 (O&M) -3- never received any such notice. He was called upon to enter on his defence, but he did not produce any defence. After going through the evidence so produced and hearing learned counsel for both the sides, the JMIC convicted and sentenced the accused as aforesaid. I have heard learned counsel for the petitioner. It has been submitted by learned counsel for the petitioner that the trial Court and the lower appellate Court failed to take cognizance of the fact that in the absence of the account books of the complainant, no reliance was to be placed upon the oral evidence produced by him that any such amount was due from the accused on account of the alleged loan. The accused disputed the fact that such a libailty had been incurred by him and he also came up with the plea that no such cheque was issued. Sunil Madan, who made a statement about the existing liability of the accused and the issuance of cheques by him, never stated that such an amount was due and the cheques were signed by the accused in his presence and those cheques were never issued to him. An illegality was apparently committed by both the said Courts by holding that cheques were issued by the accused in discharge of the pre-existing liability. The appreciation of evidence is not permissible in this revision. The revisional Court is only to see if any such illegality has been committed by completely misreading the evidence or there is some legal flaw in the judgment of the trial Court and the appellate Court. In order to prove the guilt of the accused the complainant was required to prove that he issued the cheques in dishcarge of the previous debt or libaility. The same could Crl. Rev. No. 1536 of 2004 (O&M) -4- have been proved by oral evidence also. Such oral evidence was produced by the complainant in the form of statements of Sunil Madan PW1 and Avatr Singh PW3. No doubt the former witness has not stated that the cheques were issued in lieu of money which was to be returned to the complainant by the accused, yet the statement of the later witness is on the aspect that cheques were issued by that accused in discharge of that loan so obtained by him. He not only stated that the cheques were so issued by the accused, but also identified his signatures thereon. He further stated that he is in a position to recognise his signatures as he had seen him signing the documents. The statement of this witness fulfils the requirements of Section 47 of the Evidence Act and his statement becomes relevant under that Section. Correct findings were recorded by the trial Court by holding that the cheques were issued by the accused in discharge of the debt, which was in form of the loan taken by him from the complainant. No such illegality was committed by both the Courts. The revision petition is dismissed accordingly. The trial Court is directed to take the accused in custody for undergoing the remaining sentence so imposed upon him. Records be returned forthwith. January 13, 2011 (Gurdev Singh) tripti Judge