IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision 101 of 2011 Date of Decision 16th June ,2011 ________________________________________________________ Hira Lal ….Petitioner. Versus Nand Kumar ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 ________________________________________________________ For the Petitioner: Mr. G.R. Palsara, Advocate. For the Respondent: None. _____________________________________________________________ Dev Darshan Sud, J (oral) This revision petition has been filed against the order of the learned Additional Sessions Judge, Mandi affirming the judgment of conviction awarded by the leanred Judicial Magistrate Ist Class, Karsog, District Mandi to the petitioner herein, sentencing him to undergo one year simple imprisonment for offence under Section 138 of the Negotiable Instrument Act and further directing payment of compensation of ` 1,45,000/- to the respondent. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2. The case of the respondent-complainant is that a sum of ` 1,78,000/- was taken as loan by the accused-petitioner. Compromise was entered into on 28th August, 2007 when it was agreed that entire outstanding dues between the parties has been settled for a sum of ` 1,50,000/-. A sum of ` 50,000/- was paid to the respondent on the same date and a cheque amounting to ` 1,30,000/- drawn on Himachal Gramin Bank, Nagwain was issued to the complainant on that date. This cheque on presentation by the respondent herein was dishonoured, hence the complaint. 3. The petitioner did not lead any evidence in defence though in his statement, he admitted the issuance of cheque, receipt of notice, but, all other allegations were refuted by him. The learned trial Court on the evidence of complainant holds that the cheque was issued for consideration and dishonoured for insufficiency of funds. 4. Being dissatisfied with the judgment and sentence imposed by the learned trial Court, the petitioner appealed. A number of submissions including the defence urged by the petitioner herein before the learned trial Court were urged before the learned Appellate Court which after consideration of the entire evidence on record, dismissed the appeal and affirmed the sentence. 5. The Appellate Court noticed that the plea as taken by the petitioner herein that he did not owe any money etc. to the respondent was not established on record. The appellate Court modified the sentence and remitted the fine of ` 5000/-. 3 6. The petitioner now challenges the legality and findings of the two Court below. 7. I have heard learned counsel appearing for the petitioner and gone through the judgments of two Courts below. 8. Learned counsel appearing for the petitioner vehemently urges that memo, evidencing dishonour of the cheque could not be made the basis of conviction. This submission requires to be rejected outright for the reason that it is only the memo, which is to be proved on record to show that there were insufficient funds in the account of the petitioner herein. If the case of the petitioner is that he had sufficient funds in his account, he should have produced some evidence in this behalf. I find that both the Courts below have rightly considered the evidence on record and I do not find any perversity either in appreciation of evidence or in reaching the conclusion as recorded. This revision petition is accordingly rejected. 9. On the question of sentencing, learned counsel submits that the petitioner would be subjected to unduly harsh and long incarceration in case the judgment of the learned appellate Court is upheld. I am pained to note that most of the revisions coming to this Court with respect to the dishonour of Negotiable Instrument(s) after a long period of time. Money is being utilised for a long period of time two to five years without payment of any interest, litigation from the trial stage to the revisional stage is persued with vigour by the drawer. This is not only abusing the Criminal Justice System but also reflects the attitude of the drawer. However, considering the totality of the facts and circumstances of the case, the sentence as imposed is 4 modified. I direct that in case the petitioner deposits a sum of ` 1,60,000/- with the trial Court within a period of three months from today, the setence of imprisonment shall not be executed. In case of failure to deposit this amount within the stipulated period, the sentence of imprisonment shall be duly and faithfully executed by the trial Court. On such deposit being made, the amount shall be paid to the complainant/respondent. Petition stands disposed of. Dasti copy on usual terms. June 16th, 2011 (Dev Darshan Sud), ms Judge 5