Criminal Revision No.738 of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Revision No. 738 of 2004 Date of Decision: April 17, 2009 Harbhajan Singh ...........Petitioner Versus State of Punjab and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Harsh Aggarwal, Advocate for the petitioner. Mr.Amandeep Singh Rai,AAG Punjab Mr.Shammi Khan,Advocate for respondent No.2 ** Sabina, J. Petitioner-Harbhajan Singh was convicted under Section 138 of the Negotiable Instruments Act, 1881 by the Judicial Magistrate Ist Class, Malerkotla on 3.2.2004. Vide judgment of even date, petitioner was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5000/-. Aggrieved by the same, petitioner preferred an appeal and the same was dismissed by the Additional Sessions Judge, Sangrur on 13.3.2004. Hence, the present revision petition. Brief facts of the case, as noticed by the trial Court in paras 2 and 3 of its judgment, are reproduced here in below:- “Accused No.2 on behalf of accused No.1 firm borrowed a sum of Rupees One lac on credit from the complainant and in Criminal Revision No.738 of 2004 2 discharge of the said debit, accused no.2 issued a cheque no.125762 dated 1.3.1998 for sum of Rupees One lac drawn on Oriented Bank of Commerce, Jarg Road, Malerkotla. 3. Complainant presented the said cheque on 11.8.1998 for encashment but said cheque was dishonoured vide memo dated 12.8.1998 with remarks `Insufficient funds'. Complainant has received intimation regarding the same on 18.8.1993 and on 21.8.1998, complainant has issued legal notice for commanding sum of Rupees One lac from the accused within 15 days, but despite received legal notice, accused has failed to make the payment,hence, the present complaint." Learned counsel for the petitioner has submitted that the Courts below had erred in convicting and sentencing the petitioner under Section 138 of the Act. In fact, the petitioner was not liable to make any payment to respondent No.2. As per Exhibit D1, respondent No.2 had filed the suit for specific performance of agreement to sell dated 8.8.2001. In case, petitioner had issued a cheque to respondent No.2 and the same had bounced, there was no occasion for the petitioner to enter into an agreement to sell with respondent No.2 and pay a sum of Rs.65,000/- towards earnest money. In the present case, the cheque in question is dated 4.3.1998. The same is Exhibit C9. It is duly signed by the petitioner for M/s Tiwana Tyres as partner. As per Exhibit C10, the cheque in question bounced due to insufficient funds. Notice Exhibit C11 was issued to M/s Tiwana Tyres through petitioner. Since the payment of the amount in question was not made to respondent No.2, he was left with no option but to file a complaint Criminal Revision No.738 of 2004 3 under Section 138 of the Act. In order to prove his case, complainant respondent No.2 appeared in the witness box as CW3 and deposed as per the allegations in the complaint. The factum of petitioner having entered into an agreement to sell his land with respondent No.2 has no bearing on the present complaint in question. Since the complainant had been successful in proving his case, the Courts below had rightly convicted and sentenced the petitioner under Section 138 of the Act. No interference is called for. Accordingly, this petition is dismissed. (Sabina) Judge April 17, 2009 arya Criminal Revision No.738 of 2004 4 Criminal Revision No.738 of 2004 5 resentation of the cheque, but when the said cheque was presented before the concerned bank, the same was returned with the remarks of “insufficient funds” vide memo dated 14.11.2003. The accused was duly informed that the cheque issued by him had been dishonoured. It was further stated that despite having knowledge of the dishonour of the cheque and receipt of the notice, the accused did not make arrangements to make payment of the cheque. Ultimately, a criminal complaint under Section 138 of the Act, was filed.”