IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 48 of 2010 Date of Decision: 14th September, 2010 __________________________________________________________ Praveen Gupta ….Petitioner. Versus Randheer Singh ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Petitioner: Mr. Haresh Sood, Advocate For the Respondent: Mr. Rakesh Jaswal, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner is aggrieved by the sentence imposed upon him by the learned Judicial Magistrate Ist Class, Manali, District Kullu under Section 138 of the Negotiable Instrument Act whereby compensation of Rs. 1 lac has been awarded to the complainant and the petitioner has been sentenced to undergo simple imprisonment for six months. The sentence has been affirmed by the learned Appellate Court. 2. Brief facts of the case are that the complainant- respondent instituted a complaint against the petitioner on the ground that a cheque for Rs. 80,000/- was issued by the petitioner herein which was 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 dishonoured and returned to him with memo on 16.6.2007 stating therein that it could not be honoured because of insufficient funds. 3. After recording preliminary evidence, the case set up by the complainant was that the petitioner herein had purchased various store items from the shop of the respondent for which he had issued a post dated cheque. 4. In order to prove his case, the complainant had examined three witnesses including CW1 Randheer Singh complainant himself, CW2 Jai Shree Tandon, Assistant Manager, SBI Manali and CW3 Chhavinder Thakur, Advocate. After appreciating the evidence, the learned trial Court held that cheque for Rs. 80,000/- Ext.CW1/A had been issued for consideration and that it had been dishonoured. These findings have been affirmed by the learned Appellate Court. 5. The petitioner herein challenges the sentence of conviction passed by two Courts below on the ground that the Courts below have failed to appreciate the provisions of Section 147 of the Negotiable Instrument Act and that the petitioner was entitled to get the benefit of this Section if the offence is compounded. He submits that no negotiable instrument had been issued by the petitioner for consideration. 6. I have heard learned counsel for the parties and gone through the record of the Courts below. 7. There is no evidence in defence which has been led by the petitioner. On the evidence of three witnesses including the complainant’ s evidence and Ext.CW1/A which is the cheque, Ext.CW1/B memo and Ext.CW1/C notice issued on behalf of the complainant, Ext.CW1/D postal receipt and Ext.CW1/E the receipt of postal certificate, I cannot persuade myself to hold that the complainant has not been able to establish his case. Infact, there is nothing in the cross examination of this 3 witness to suggest that no cheque has been issued. In these circumstances, I do not find any merit in this revision petition, which is accordingly dismissed. 8. On the question of sentencing, the substantive sentence of imprisonment is set aside on the condition that in case the petitioner herein pays the compensation amount of Rs. 90,000/- to the respondent within a period of three months from today, the sentence of imprisonment shall not be executed. It is clarified that in case the amount is not paid, the sentence of imprisonment shall be duly carried out. Petition stands disposed of. (Dev Darshan Sud) Judge September 14th , 2010(ms)