IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1811 of 2009 (O/M). Date of Decision : July 21, 2009. M/s Mahadev Rice Traders, Patiala Road, Ghagga, Tehsil Samana, District Patiala, through its Prop. Sh. Sanjiv Kumar son of Parkash Chand, and another. ...... Petitioners. Versus. Punjab State Ware Housing Corporation, Sector-17-B, Chandigarh through its Incharge State Ware Housing Samana, District Patiala, and another. ..... Respondents. CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. B.S. Kathuria, Advocate, for the petitioners. AUGUSTINE GEORGE MASIH, J. The present revision petition has been preferred against the judgment dated 09.07.2009, passed by the Additional Sessions Judge, Fast Track Court, Patiala, dismissing the appeal preferred by the Petitioners against the judgment and order dated 06.09.2006, passed by the Judicial Magistrate 1st Class, Samana, convicting the petitioner/appellant under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as “the Act”), sentencing the appellant to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 3,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months. The petitioner/accused No. 2 being a sole proprietor of petitioner No. 1-company issued seven cheques amounting to Rs. 45,00,000/- in total in favour of respondent/complainant-Corporation. The said cheques Criminal Revision No. 1811 of 2009. were presented by respondent/complainant-Corporation with the drawee bank on 02.02.2000. The said cheques were returned unpaid, vide memo dated 02.02.2000. Respondent/complainant-Corporation served a legal notice dated 09.09.2000 upon the petitioners through registered post and under postal certificate on 10.02.2000 at their residential and business address. The legal notice was duly served upon petitioner No. 2, who is the sole proprietor of petitioner No. 1-firm. Despite service of notice, the petitioners failed to make payment of cheques to the respondent/complainant-Corporation, leading to filing of a complaint under Section 138 of Act against the petitioners, alleging that the respondent/complainant-Corporation entrusted the work of milling of paddy to the petitioners-accused. The paddy was duly supplied as per agreement dated 19.03.1998 Ex.D.A. to the petitioners-accused for milling purpose, but the petitioners-accused failed to return the rice after milling of this paddy. These seven cheques were issued to discharge the debts and liabilities by the petitioners-accused to respondent/complainant-Corporation due to petitioner's failure in returning rice after milling of the paddy. 44188 bags of paddy weighing 28717.65 quintals were entrusted by the respondent/complainant-Corporation to the petitioners-accused as per agreement dated 19.03.1998 Ex. D.A. The Trial Court as well as the lower Appellate Court on consideration of the evidence produced by the parties have come to a conclusion that the petitioners-accused have issued seven cheques Ex.A.6 to Ex.A.12 for a total sum of Rs. 45,00,000/- in favour of respondent/complainant-Corporation in order to discharge its liability. On presentation of these cheques, the same were dis-honoured on 02.02.2000 -2- Criminal Revision No. 1811 of 2009. and despite legal notice dated 09.09.2000 Ex.A.13 having been duly served upon the petitioners-accused by respondent/complainant-Corporation, the petitioners-accused failed to make the payment of amount of the said cheques, holding the petitioners-accused guilty of offence punishable under Section 138 of the Act and accordingly, order of conviction and sentence was passed against the petitioners-accused. Counsel for the petitioners contends that the cheques in question were issued by the petitioners-accused as a surety amount and not in discharge of debt or legal liability. He submits that if the assertion of the respondent/complainant-Corporation is accepted, then respondent/complainant-Corporation was duty bound to present the stock register and supply register showing that the paddy stock has been supplied to the petitioners-accused to the tune of Rs. 45,00,000/- to make him liable to pay that amount, failing which no case under Section 138 of the Act could be attracted. He submits that in the absence of records showing that actually the paddy, which was supplied to the petitioner, was worth Rs. 45,00,000/-, the liability to pay for non return of milled rice, cannot be foisted on the petitioner. This contention of counsel for the petitioners cannot be accepted for the reason that Section 139 of the Act puts the burden upon accused to rebut the presumption that the holder of cheque received the cheque of the nature referred to in Section 138 of the Act for discharge in whole or in part of any debt or other liability. The onus, therefore, was on the petitioners to prove that the cheques were not issued to respondent/complainant-Corporation for discharge of any debt or other liability. Hon'ble the Supreme Court in the case of K.S. Bana Versus -3- Criminal Revision No. 1811 of 2009. Muniappa and another, A.I.R. 2001 Supreme Court 2985, has held that the burden of proof that the cheque, which has been issued by the accused has not been issued for a debt or liability is on the accused himself. Mere denial of the accused is not sufficient to shift the burden of proof on to the complainant. The accused has to prove by leading cogent evidence before the Trial Court that there was no debt or liability. That being the position under the statute and in law, the contention as raised by counsel for the petitioners cannot be accepted. The second contention, which has been raised by counsel for the petitioners is that the petitioners cannot be held liable as the partnership firm stood dissolved on 31.01.1998 as per letter dated 22.09.2000 Ex. DB, written by Brij Lal and Bhola Ram to District Convener, Punjab State Warehousing Corporation, Patiala, that they were partners in M/s Mahadev Rice Traders alongwith Sanjeev Kumar s/o Parkash Chand but they have withdrawn themselves from partnership on 31.01.1998, leaving Sanjeev Kumar s/o Parkash Chand-petitioner No. 2 as the sole proprietor of the firm. He on this basis submits that the cheques could not be issued nor could the petitioners be held liable for the said cheques being issued in the name of partnership firm, which already stood dissolved. This contention of counsel for the petitioners again does not have any force. The agreement which is the basis for creating liability of the petitioners is dated 19.03.1998 Ex. DA. The partnership firm, if letter dated 22.09.2000 is taken to be correct , came to be dissolved w.e.f. 31.01.1998 on the retirement of Brij Lal and Bhola Ram, previous partners of the accused firm M/s Mahadev Rice Traders- petitioner No. 1. The date on which the agreement was entered into in the name of firm, it had become a sole proprietorship concern of accused -4- Criminal Revision No. 1811 of 2009. Sanjeev Kumar-petitioner No. 2. He entered into an agreement as a sole proprietor and seven cheques No. 154674 dated 20.12.1999 amounting to Rs. 5 lacs, 154675 dated 20.12.1999 amounting to Rs. 5 lacs, 154676 dated 24.12.1999 amounting to Rs. 10 lacs, 154677 dated 25.12.1999 amounting to Rs. 5 lacs, 154678 dated 30.12.1999 amounting to Rs. 5 lacs, 154679 dated 30.12.1999 amounting to Rs. 10 lacs and 154680 dated 30.12.1999 amounting to Rs. 5 lacs had been issued in discharge of his debts and liabilities. All these cheques were issued after dissolution of the partnership. That being so, the agreement having been entered into as a sole proprietor of the petitioner No. 1-firm, contention of counsel for the petitioner that the cheque was issued in the name of partnership firm, cannot be accepted. The liability, therefore, was of the petitioners, for which they had in discharge whereof issued the abovementioned cheques. The last contention, which has been pressed into service by counsel for the petitioner is that an F.I.R. has been got registered by respondent/complainant-Corporation against the petitioners under Section 406/409 I.P.C. He further submits that as per said F.I.R., it has been stated therein that the petitioners have issued cheques amounting to Rs. 45,00,000/- as surety. Perusal of the cross-examination of Shri T.C. Sharma, would indicate that no question was put to him that the said F.I.R. pertains to the agreement dated 19.03.1998 Ex. DA nor has the said F.I.R. been exhibited before the Trial Court. In view of this, contention raised by counsel for the petitioner cannot be accepted as neither the F.I.R. number nor the date of the said F.I.R. or the police station has come in the cross-examination of Shri T.C. Sharma. Mere admission in the cross-examination by complainant- witness that F.I.R. has been registered without co-relating it with the -5- Criminal Revision No. 1811 of 2009. agreement in question or bringing on record the F.I.R. and contents thereof cannot be pressed into service to discharge the onus which was upon the petitioners themselves or to take any benefit thereof. No other contention has been raised by counsel for the petitioners. Finding no merit in the present petition, the same stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE July 21, 2009. sjks. -6-