IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision No. 70 of 2011 Date of Decision 29th April ,2011 ________________________________________________________ Rameshwar Sharma ….Petitioner. Versus M/s Rama Hardware ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ________________________________________________________ For the Petitioner: Mr. Manohar Lal Sharma, Advocate. For the Respondent: Mr. Rajiv Sood, Advocate. ______________________________________________________________ Dev Darshan Sud, J (oral) The petitioner is aggrieved by the judgment of the two Courts below convicting him for offence under Section 138 of the Negotiable Instrument Act. The complainant-respondent herein approached the trial Court on the allegations that the petitioner had purchased goods for ` 52,548/- from his Hardware Shop and to discharge this liability he had issued a cheque amounting to ` 52,548/- which was dishonoured by the Bank. 2. In order to prove his case, the complainant examined Shri Vivek Kuthiala, partner of the Firm, who appeared as CW-1 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 and supported the allegations made in the complaint. He states that when cheque Ext.CW1/C dated 15.12.2003 was issued by the petitioner and when it was presented to his bankers UCO Bank Ram Bazar, it was received back dishonoured with memo Ext.CW1/D as the payment had been stopped. The learned Court found that payment was stopped without any reasonable cause. 3. In defence the accused/petitioner examined one Chaman Lal from the Himachal Pradesh State Cooperative Bank Branch, Totu where he was having his account. He tried to establish that the cheque was missing from his custody and misused, but this fact was not established. 4. The learned trial Court accordingly proceeded to sentence the petitioner to six months simple imprisonment and to pay compensation of ` 70,000/-. These findings were re- affirmed by the learned Appellate Court. 5. I have heard learned counsel appearing for the parites and gone through the judgments of the Courts below. 6. Learned counsel appearing for the petitioner submits that both the Courts below were wrong in convicting the accused on the evidence on record as it was not established on record as to whether the cheque was issued for valuable consideration and further it has been taken away from his custody. 7. I cannot accept this contention. In case the Negotiable Instrument (cheque in this case) was taken away from his custody, as a prudent man he should have reported the matter to the police or initiated criminal proceedings. I find that no such action having been taken by the petitioner. Moreover, I also do not find that any civil suit was filed by the petitioner 3 against any person on the allegation that the cheque was misused by him. 8. I do not find that the sentence imposed by the Courts below is harsh. Now-a-days it has become a common practice that instead of settling dispute with respect to payments by cheque interse between the parties, they are fighting upto the High Court over an extended period and urging pleas which are either not substantiated or are frivilous. However, since a long period has elapsed, as an exceptional case, the sentence of imprisonment is modified subject to the petitioner depositing a sum of ` 85,000/- within a period of two months from today, failing which the sentence of imprisonment shall revive and shall be carried out dutyfully by the learned trial Court forthwith. On such deposit being made, the amount shall be paid to the respondent-complainant. Petition stands disposed of. Dasti copy on usual terms. April 29th , 2011 (Dev Darshan Sud), ms Judge 4