IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Rev. No. 103 of 2011. Date of Decision 17.6.2011. _________________________________________ Rakesh Arora. ….Petitioner. Versus. Sahil Rana. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the petitioner :Mr.Nimish Gupta, Advocate. For Respondent . : Dev Darshan Sud, J.(Oral). The petitioner challenges his conviction by the two courts below for offences under Section 138 of Negotiable Instrument Act sentencing him to undergo simple imprisonment for three months and compensation to the extent of Rs. 52,000/- and in default of payment of this amount to undergo further simple imprisonment for seven days. 2. Complainant instituted the complaint, out of which this revision petition arises, on the allegation that the petitioner herein had taken loan of Rs. 40,000/- from him and to clear this liability, a cheque in the sum of Rs.40,000/- was issued on State Bank of India, Khairi. On presentation, this cheque was dis-honoured. The case of the Whether reporters of the Local papers are allowed to see the judgment.yes. 2 petitioner was one of simple denial including statement having been made by him that he did not sign on the cheque. 3. On the evidence on record, which consisted of CW1 Sahil Rana, who proved the cheque Ext.CW1/A and the fact that he had advanced a sum of Rs.40,000/- to help out the petitioner, since he was his friend and acquaintance. He proved on record Ext.CW1/C and CW1/B which were the bank memo returning the cheque etc. Ext.CW1/D is a notice sent by him, Ext.CW1/E is the postal receipt and CW1/F is the UPC receipt. A number of contentions raised before the learned trial Court that neither any witness nor any receipt qua consideration have been proved, cheque does not bear the signatures of the petitioner and no valid notice was received by him. One more submission made was that the number of the cheque subject matter of the complaint and Ext.CW1/A the dishonoured cheque does not tally thus, the complaint merits dismissal. 4. The learned trial Court, relying upon the judgment of the Supreme Court in C.C.Alavi Haji Vs. Palapetty Muhammed and another, 2007 Crl. L.J. 3214, rightly held that where the question of non receipt of notice is raised, it is always open to the borrower to tender the amount in court on receipt of summon. I need not go into this aspect further. 5. On the question of the signatures of the petitioner not matching, the learned trial Court again, rightly holds that the cheque Ext.CW1/A was returned vide memo Ext.CW1/B and the reason for returning the cheque is insufficient fund and not variations in signatures. The defence set up that the complainant had removed the cheque from the shop of the petitioner herein and then mis-utlized it, 3 was rightly rejected by the learned court holding that there is no First Information Report or other action was taken despite long period having elapsed which pointed to the falsity of the defence set up by the petitioner. 6. The petitioner appealed. The very same points were reiterated before the learned appellate Court. The learned appellate Court, adverting to one of the main plank of the arguments of the petitioner herein that there was a difference in the cheque number, held that when he cross-examined the complainant at length, there was no suggestion that cheque Ext.CW1/A was not issued by the petitioner herein rather the case is that it was stolen from his shop. The petition was, therefore, dismissed. 7. I have heard learned counsel for the petitioner and gone through the judgments of both the courts below. 8. It is urged before me that because of the difference in the number of cheque as mentioned in the complaint as also in the notice, complaint was not maintainable and therefore required to be dismissed as he did not comply with the mandatory provisions of law. 9. I have given my careful and anxious thought to the submission made on behalf of the petitioner. The learned appellate Court rightly holds that a clerical/typing mistake cannot form the basis for acquittal of the petitioner herein. The evidence on record is clear that a sum of Rs.40,000/- had been advanced as a loan to the petitioner herein on the basis of old acquaintances, the defence set up by him was one of total denial. Nothing having been established either in cross-examination or by leading positive evidence that the dishonour of the cheque having been proved beyond a reasonable doubt for 4 insufficiency of funds. I do not find any perversity in the appreciation of evidence or in the conclusion arrived at. This revision petition is accordingly dismissed. 10. On the aspect of sentencing, is more often than once, I have noticed that the cheques are being dishonoured, money utilized by the drawer for four to five years without paying a single penny of interest, false/untenable defence is being set up and the payee have been dragged into litigation. 11. In these circumstances, even his sentence of imprisonment is imposed, it is not contrary to law. However, on the submission made by the learned counsel appearing for the petitioner, I am persuaded to satisfy the substantive sentence of imprisonment and to direct that the petitioner shall pay a sum of Rs.60,000/- in all within a period of four months from today failing which the sentence imposed by the trial Court shall revive which shall be duly and faithfully executed and carried out by the learned trial Court. (Dev Darshan Sud), Judge. June 17, 2011(R)