Crl. Revision No. 326 of 2011 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Rev.No.326 of 2011 Date of decision: 23.5.2011 Balwinder Kumar ... Petitioner versus Narinder Kumar ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.G.C.Shahpuri, Advocate, for the petitioner. Mr.D.S.Adlakha, Advocate, for the respondent. ... JORA SINGH, J. Balwinder Kumar filed this revision to challenge the impugned order dated 27.1.2011 passed by JMIC, Jagadhri, vide which, defence evidence of the petitioner was closed by order. Complaint under Section 138 of the Negotiable Instruments Act (for short, `the Act') was instituted by Rajo Devi (deceased) through her attorney against the present petitioner. Evidence of the complainant was closed on 18.10.2010. Statement of the petitioner under Section 313 Cr.P.C. was recorded on 21.10.2010. After that, complaint was adjourned for defence evidence and ultimately as per impugned order dated 27.1.2011, defence of the petitioner was closed by order. Learned counsel for the petitioner states that cheque in question dated 1.12.2004 worth Rs.1,50,000/- was issued by the petitioner. Cheque was dishonoured. Then after completing legal formalities, complaint under Section 138 of the Act was instituted. Crl. Revision No. 326 of 2011 2 Learned counsel for the petitioner argued that cheque amount was returned as per receipt dated 10.12.2004 (Annexure R-2). Receipt was issued by Harkesh Kumar son of Rajo Devi (deceased). Application was moved to summon Harkesh Kumar and an employee of the bank. Application was allowed. Official of the bank appeared in Court but Harkesh Kumar was not served. Summons were received with report that he is avoiding service. Argued that complaint remained pending for about three years for evidence of the respondent-complainant. Evidence of the respondent-complainant was closed on 18.10.2010 and after that, only six dates were given for defence. On one date, Presiding Officer was on leave. Argued that one date be given and on that date, evidence will be completed by the petitioner. Learned counsel for the respondent argued that cheque in question dated 1.12.2004 issued by the petitioner was dishonoured. Cheque was presented twice before the bank but on both the occasions, cheque was dishonoured. Then notice was issued to the petitioner but despite notice, no payment. According to the petitioner, cheque amount was returned vide receipt dated 10.12.2004 (Annexure R-2). Receipt was not issued by Rajo Devi. No doubt, Rajo Devi along with her son was residing jointly, but there was no idea to make payment to Harkesh Kumar. Payment should have been made to the complainant, namely, Rajo Devi. Satish Kumar, one of the marginal witness, appeared as DW. Receipt dated 10.12.2004 (Annexure R-2) was exhibited and is to be read in evidence. Court is to see as to what is the evidentiary value of the receipt. Whether payment was returned to Harkesh Kumar due to Rajo Devi as per cheque dated 1.12.2004. Sole purpose of the petitioner is to delay the proceedings. Crl. Revision No. 326 of 2011 3 After going through the file, I am of the view that sole purpose of the petitioner is to delay the proceedings. Cheque in question is dated 1.12.2004. Cheque was presented twice before the Bank but on both the occasions, cheque was dishonoured. After the cheque was dishonoured, then notice was issued to the petitioner but no payment. In case, petitioner had returned payment as per receipt dated 10.12.2004 (Annexure R-2) to Harkesh Kumar, then petitioner could easily file reply that as per receipt dated 10.12.2004, payment was made to Harkesh Kumar. Receipt is dated 10.12.2004 and at that time, Rajo Devi was alive. Death of Rajo Devi was on 26.1.2006. After the death of Rajo Devi, her attorney, namely, Surender Kumar, appeared as CW4. Surender Kumar stated that cheque in question was presented twice before the Bank but on both the occasions, cheque was dishonoured. Then Rajo Devi had sent a registered legal notice through her counsel to the petitioner. Notice was received by the petitioner but no payment. In cross-examination, Surender Kumar admitted that he has two brothers, namely, Narinder Kumar and Harkesh Kumar. Harkesh Kumar is residing with him in the same house. He has no dispute with Harkesh Kumar. Harkesh Kumar is a labourer. Suggestion was given to Surender Kumar that Rs.1,50,000/- was returned to Harkesh Kumar and his mother but they failed to return the cheque in question. Again suggestion was given that when Rs.1,50,000/- was returned to Harkesh Kumar in the presence of his mother, then Harkesh Kumar had given a receipt in favour of the petitioner in the presence of witnesses. That means, in the presence of Rajo Devi, payment of Rs.1,50,000/- was given to Harkesh Kumar but if as per cheque in question, payment was due from the petitioner then payment was to be made to Rajo Devi, Rajo Devi was present when receipt dated Crl. Revision No. 326 of 2011 4 10.12.2004 (Annexure R-2) was issued, then question is why payment to Harkesh Kumar and not to Rajo Devi. In case, payment was handed over to Harkesh Kumar in the presence of Rajo Devi, then signatures/thumb impression of Rajo Devi should have been obtained on the receipt (Annexure R-2). Cheque in question is dated 1.12.2004 and receipt is dated 10.12.2004. As discussed earlier, if payment was in the presence of Rajo Devi to Harkesh Kumar, then very strange why signatures/thumb impression of Rajo Devi were not obtained and only signatures of Harkesh Kumar were obtained on the receipt (Annexure R-2). Harkesh Kumar is illiterate. Already, petitioner has examined one of the marginal witnesses of the receipt (Annexure R-2), namely, Satish Kumar. Receipt was exhibited. Court is to see as to what is the evidentiary value of receipt (Annexure R-2). After the statement of the petitioner under Section 313 Cr.P.C. on 21.10.2010, complaint was adjourned to 20.11.2010 for defence and on that date, one DW was present and examined. Then complaint was adjourned to 11.12.2010 for remaining defence and arguments. Order dated 20.11.2010 is silent about summoning of DWs on deposit of diet money. Annexure P-2 is the copy of order dated 20.11.2010. Annexure P-3 is the copy of order dated 11.12.2010. On that date, Presiding Officer was on leave and case was adjourned to 8.1.2011 for defence evidence. On 8.1.2011, petitioner moved an application to appear as DW. Application was allowed. Second application was moved to summon Clerk of Indian Overseas Bank along with record. Summons were issued to Harkesh Kumar and Jitender Pal. On 27.1.2011, Clerk of the bank was present and examined. He Crl. Revision No. 326 of 2011 5 had produced specimen signatures of Harkesh Kumar (Ex.D2/A). As discussed earlier, marginal witness to the receipt (Annexure R-2) has appeared. Document was exhibited and is to be read by the Court at the time of final arguments. No doubt, summons sent to Harkesh Kumar were received with report that he is avoiding service. Specimen signatures of Harkesh Kumar were summoned from the bank with a view to examine the Expert for comparison of specimen signatures with disputed signatures of Harkesh Kumar on the receipt (Annexure R-2) dated 10.12.2004. Ultimately, if specimen signatures of Harkesh Kumar are compared with disputed signatures on the receipt (Annexure R-2) and report is to the effect that specimen signatures and disputed signatures are of one and same person, i.e., disputed signatures are tallying with specimen signatures of Harkesh Kumar, then ultimate argument of the petitioner would be that as per receipt (Annexure R-2), which was already exhibited in view of the statement of one of the marginal witness, payment was made to Harkesh Kumar but when payment was returned to Harkesh Kumar, then at that time, Rajo Devi was present. No explanation why signatures/thumb impressions of Rajo Devi were not obtained on the receipt (Annexure R-2) and why receipt was issued by Harkesh Kumar when payment was to be made to Rajo Devi. If Harkesh Kumar has received payment as per receipt (Annexure R-2), then remedy with the petitioner is to recover payment from Harkesh Kumar as per law. If payment was made to Harkesh Kumar as per receipt (Annexure R-2), then he should have taken back cheque in question but no effort to collect cheque in question from Rajo Devi or Harkesh Kumar. First time, cheque was presented before the bank and the same was dishonoured vide memo dated 23.2.2005. Second time, cheque was Crl. Revision No. 326 of 2011 6 presented and the same was dishonoured vide memo bank memo dated 25.5.2005 with remarks `insufficient fund'. Already six dates were given to the petitioner for defence. Rajo Devi was alive when as per receipt (Annexure R-2), payment was returned. When payment was due to Rajo Devi, then there was no idea to return payment to Harkesh Kumar, particularly when Rajo Devi was present. All this shows that there is no infirmity or illegality in the impugned order and the same is upheld. Revision without merit is dismissed. 23.5.2011 ( JORA SINGH ) pk JUDGE