In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Revision No.941 of 2006 ..... Date of decision:2.9.2011 Surjit Singh .....Petitioner v. Balwinder Singh .....Respondent .... CORAM : HON'BLE MR. JUSTICE MOHINDER PAL ..... 1. Whether Reporters of Local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ...... Present: Mr. Mohd. Yousaf, Advocate for the petitioner. Ms. Abha Sood, Advocate for Mr. Harsh Aggarwal, Advocate for the respondent. ..... Mohinder Pal, J. This criminal revision petition is directed against the judgment dated 21.4.2006 passed by the learned Additional Sessions Judge, (Ad hoc), Fast Track Court, Sangrur, whereby the judgment of conviction and order sentence dated 15.1.2002 passed by the learned Sub Divisional Judicial Magistrate, Malerkotla, convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as `the Act') and sentencing him to undergo rigorous imprisonment for Cr. Revision No.941 of 2006 [2] 18 months and to pay compensation of `2 Lacs to the complainant within a period of one month under Section 357 Cr.P.C. has been modified to undergo rigorous sentence for one year whereas the sentence of compensation amounting to `2 Lacs has been maintained. The petitioner had raised a loan of `5 Lacs from the respondent on 21.2.1997 and issued a post-dated cheque No.QYY-956990 in favour of the complainant in respect thereto in discharge of his liability to pay back the loan amount of `5 Lacs from his account No.25671 drawn on Punjab National Bank, Main Branch, Malerkotla. On presentation, this cheque was dishonoured by the concerned Bank and returned with the remarks “Insufficient to honour the cheque”. The complainant-respondent sent registered demand notice on 25.2.1997 through his counsel upon the petitioner-accused with the request to make payment within 15 days. However, the petitioner neither paid the amount of the cheque to the complainant-respondent nor replied to the demand notice. Thereafter, the complainant per force filed complaint against the petitioner-accused under Section 138 of the Act. Learned trial Court after examining the evidence led by the parties and considering the rival contentions put forth by the learned counsel for the parties convicted and sentenced the accused- petitioner as stated above, which on appeal learned Additional Sessions Judge reduced the sentence. Against that decision present revision petition has been filed which is now meant for disposal. I have heard the arguments of the learned counsel for the petitioner as well as learned counsel for the respondent and have very carefully gone through the evidence produced in this case with their Cr. Revision No.941 of 2006 [3] assistance. Learned counsel for the petitioner argued that the petitioner has undergone the entire sentence awarded to him. However, he has submitted that the fine imposed upon the petitioner may be suspended. He has submitted that it is a case of money lending and the complainant was not able to show that he was having the money on that particular date. It has been submitted that the respondent has failed to prove the fact that he was having money in his possession to let the same to the petitioner on the relevant date. The petitioner has taken the plea that the cheque had been stolen by his brother Amrik Singh, who was LIC Agent and handed it over to the complainant. The acts which are components of the offence under Section 138 of the Act i.e. drawing of the cheque, presentation of the cheque to the Bank, returning of the cheque unpaid by the drawee Bank, giving notice in writing to the drawer of the cheque demanding payment of the cheque amount and failure of the drawer to make payment within fifteen days of the receipt of the notice, stand proved on record by the evidence led by the complainant-respondent. C.W.1 Balwinder Singh has deposed that he was having good relations with the accused Surjit Singh for the last many years and the accused borrowed a sum of `5 Lacs from him (complainant). The accused-Surjit Singh also issued a post-dated cheque No.QYY-956990 dated 21.2.1997 (Ex.PW-1/A) drawn at Punjab National Bank, Main Branch, Malerkotla from his Account No.25671. He has further deposed that the said cheque had been signed by Surjit Singh-accused in the presence of the complainant and it was assured by the accused that the Cr. Revision No.941 of 2006 [4] cheque would be encashed on presentation. Shri B.L. Batta, Clerk in the Punjab National Bank, Malerkotla had deposed about his services in the said Bank for the last so many years and about Account No.25671 he deposed that it was in the name of Surjit Singh son of Bachan Singh. He had also produced correct copy of the amount opening form (Ex.PW.2/A) and cheque Book containing cheques No.QYY-956901 to 957000 issued to Surjit Singh-account holder. The entry of the said cheque issue register was also proved vide his correct copy (Ex.PW-2/B) from the original register. CW-2 further deposed that cheque No.QYY 956990 dated 21.2.1997 was presented in the above said account for encashment, but it was returned with the memo “for want of sufficient funds” in the account of the accused-Surjit Singh. He also proved Ex.PW-2/C, which is the entry made in the cheque return register. From the evidence of the official of the concerned Bank it stands proved on record that the cheque issued by the revision petitioner in favour of the complainant was dishonoured due to insufficient funds. Once the petitioner has accepted before the Courts below that the cheque had been issued by him, his contention that it was stolen by his brother Amrik Singh, who was LIC Agent and friend of the complainant and handed it over to the complainant and that the complainant was not in a position to pay this payment could not sustain because it has been observed that Amrik Singh in connivance with his brother-Surjit Singh (petitioner) had created the above said defence to defeat the legitimate claim of the complainant, who otherwise successfully proved the fact of receiving the cheque from the accused Surjit Singh after advancing him a loan of `5 Lacs. There has not been any evidence in defence proving that how the cheque passed on the Cr. Revision No.941 of 2006 [5] hands of the complainant. Otherwise, it has been held in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan, 2000 (1) P.L.R 113 that Court will presume that holder of the cheque received it for discharge of any debt or liability and burden is on the accused to rebut the presumption, which the revision-petitioner has not been able to do in this case. The revision petitioner, therefore, has rightly been convicted and sentenced under Section 138 of the Act which has been modified by the order of the learned Additional Sessions Judge (Ad hoc), Fast Track Court, Sangrur from 18 months to one year, which as per the contention of the learned counsel for the petitioner, he has undergone. The facts and circumstances, discussed above, lead to the only conclusion that the petitioner has rightly been convicted by the Courts below. The conviction of the petitioner under Section 138 of the Act is, therefore, confirmed. The sentence imposed on the petitioner is also commensurate with the offence committed by him. The impugned order of sentence as modified by the learned Additional Sessions Judge (Ad hoc), Fast Track Court, Sangrur is also confirmed. Resultantly, this revision petition is hereby dismissed. September 2, 2011. (Mohinder Pal) Judge *hsp*