Crl. Revision No. 841 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 841 of 2005 Date of decision: April 28, 2011 Karan Singh Sambyal ...Petitioner Versus Bhim Singh ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Sanjiv Bansal, Advocate, for the petitioner. Mr. Bhim Singh-respondent in person. GURDEV SINGH, J. (Oral) The petitioner/accused, Karan Singh Sambyal, has preferred this revision against the judgment dated 27.4.2005 passed by the Additional Sessions Judge, Panchkula, vide which he dismissed the appeal preferred by him against the judgment/order dated 1/6.3.2004 passed by the JMIC, Panchkula, vide which he convicted the accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') and sentenced him to undergo rigorous imprisonment for two months and to pay a fine of `1,000/- and in default thereof, to further undergo simple imprisonment for a period of one month and also directed him to pay compensation of ` 4.5 lakhs to the complainant/respondent. Briefly stated, the facts are that the complainant filed complaint under the aforesaid section and Section 420 IPC against the Crl. Revision No. 841 of 2005 2 accused, contending therein that in the month of August, 1995, the accused visited his house in connection with a function, where his relatives Rajesh Kumar son of Sat Pal, Kuldeep Singh son of Sheo Ram, Kuldeep Singh son of Sheesh Ram and Satbir son of Ishwar were also present, who showed their desire to go abroad and the accused demanded a sum of `6.55 lakhs for sending them abroad. In case of his failure to send them abroad, he agreed to return that amount to the complainant alongwith interest @ 18% p.a. That amount was paid to the accused but he failed to send his relatives abroad and, as such, he asked him to return that amount. The accused agreed to give ` 2.40 lakhs through cheque and assured him that the balance amount would be paid soon. Accordingly, he issued two cheques No. 884634 dated 21.1.1997 and 675562 dated 13.7.1997 for `2 lakh each, drawn on City Bank, New Delhi, and assured that those cheques would be honoured on presentment to his banker. Believing that assurance of the accused, he presented those cheque through his own banker, but the same were dishonoured on account of insufficient funds in the account of the accused. The cheques were returned, alongwith memo dated 22.9.1997. He sent a notice of demand dated 6.10.1997 to the accused for the payment of the amount of those cheques within 15 days from the date of receipt of the notice but he failed to do so. On the basis of the preliminary evidence produced by the complainant, the accused was summoned to stand his trial for the offence under Section 138 of the Act. On his appearance before the JMIC, Panchkula, notice of the offence was served upon him, to which he pleaded not guilty and claimed trial. To prove his guilt, the complainant examined himself as CW-1 and Satish Kumar CW-2. After he closed his evidence, the accused was examined and his statement was recorded under Crl. Revision No. 841 of 2005 3 Section 313 of the Cr. P.C. The incriminating circumstances appearing against him in the complainant's evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He stated that his brother Mahabir Singh and the complainant are dentists by profession and the complainant used to fabricate dentures for his brother and wanted to construct a lab for that purpose in collaboration with his brother. It was for the construction of that lab that he had given the cheques to him twice, as donation. However, on account friction between the complainant and his brother, he had withdrawn that donation from him. He was called upon to enter on his defence and he examined his brother Mahabir Singh (DW-1) in his defence. I have heard learned counsel for both the sides. While challenging the conviction of the accused so recorded by the trial court and upheld by the appellate court, it has been submitted by the learned counsel for the petitioner/accused that the story, which has been put forwarded by the complainant, does not inspire any confidence and is a fabricated one. It cannot be said that the relatives of the complainant would come to attend a function in his house while carrying such a huge amount with them. It is very much clear from the contents of the complaint and the statement of the complainant (CW-1) that he himself had not given any penny to the accused from his own pocket and all that money was given to him by his relatives. Therefore, it cannot be said that the accused had any such legally enforceable liability towards the complainant. It cannot be said that any offence under Section 138 of the Act has been committed on account of dishonoring of the cheques in dispute. He further submitted that a sum of ` 4.5 lakhs was paid by the accused to the complainant and in view Crl. Revision No. 841 of 2005 4 of that lenient view be taken and the sentence of imprisonment so imposed upon him be reduced to the period already undergone by him. According to him, the accused has already undergone sentence of imprisonment for a period of 17 days. In this revision, re-appreciation and re-appraisal of the evidence is not permissible, unless there is ground for coming to the conclusion that the findings recorded by the trial court or the appellate court are perverse or illegal or are based on misreading of the evidence. The complainant CW-1, while making statement in the Court, reiterated all the facts so pleaded in the complaint. On a minute perusal of the his statement, it has been found by this Court that there is nothing in his statement on the basis of which it may be concluded that the version put forward by him does not inspire any confidence. In those days i.e. in the year 1995, when the value of the rupees had fallen down, there was nothing unusual for the relatives of the complainant to carry sum of `6.5 lakhs with them. If the version of the complainant is to be believed, then no scope is left for the arguments advanced by the learned counsel for the accused. His statement was tested by the accused on the touchstone of cross-examination and no such circumstance has crept in on the basis of which it may be concluded that the version put forward by him does not inspire any confidence. He was fair enough to depose in the Court that he had not paid any money from his pocket and this amount of `6.5 lakhs was given to him by his relatives and he has further given that amount to the accused. After that amount was handed over to the accused by the complainant, he owed a liability to return that amount to the complainant and not to his relatives and if his relatives were to proceed they were to proceed against the complainant. Therefore, Crl. Revision No. 841 of 2005 5 there was legally enforceable liability on the part of the accused towards the complainant. From the evidence produced by the complainant, on the record, it firmly stands proved that the cheques were issued by the accused in discharge of that legally enforceable liability. No ground is made out for interfering in the finding of conviction so recorded by the trial court and upheld by the appellate court. The main grouse of the complainant stands fulfilled after having received the compensation of `4.5 lakhs from the accused. The cheques in question were for a sum of `4 lakhs and virtually that amount stands paid to the complainant. In these circumstances, the sentence of imprisonment so imposed upon him is reduced to the period already undergone. With this modification, the revision is disposed of. April 28, 2011 (GURDEV SINGH ) prem JUDGE Note:- Whether to be referred to reporter No