IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1091 of 2000 Date of Decision : February 05, 2010 Navpreet Singh ....Petitioner Versus State of Punjab and another .....Respondents CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.S. Behl, Advocate for the petitioner. Mr. P.S. Grewal, Assistant Advocate General, Punjab for respondent No.1. Mr. H.S. Dhindsa, Advocate for respondent No.2. T.P.S. MANN, J. The petitioner was convicted by the trial Court for an offence under Section 138 of the Negotiable Instruments Act on a private criminal complaint instituted by respondent No.2 and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.One lac, in default thereof, to undergo further rigorous imprisonment for three months. In appeal, his conviction and substantive sentence of imprisonment was maintained. However the amount of fine was converted into compensation, to be paid to the complainant/respondent No.2 after the expiry of the period of appeal or revision, if any. According to the complainant/respondent No.2, the petitioner, who had been dealing in the transportation of furnace oil, hired tankers of the complainant on payment of carriage charges. The petitioner came to owe Rs.2,00,000/- to the complainant and to Criminal Revision No.1091 of 2000 discharge this liability, he issued cheque No. 183998 dated 6.3.1996 in the sum of Rs.2,00,000/- in favour of the complainant. When the complainant presented the said cheque to the State Bank of Patiala, Miller Ganj Branch, Ludhiana for encashment, it was dishonoured due to insufficient funds in the petitioner's account. Upon receiving the information, the complainant sent registered notice dated 8.6.1996 to the petitioner calling upon him to make the payment of the cheque amount within 15 days of the receipt of the notice but it was to no avail. Accordingly, the complaint under Section 138 of the Act was instituted. The preliminary evidence was examined by the complainant pursuant to which the trial Court summoned the petitioner for the aforementioned offence. Upon his appearance in the Court, notice of accusation was served upon the petitioner to which he pleaded not guilty and claimed trial. In support of his case, the complainant examined PW1 Sanjay Malhotra, Clerk-cum-Cashier, State Bank of Patiala, Miller Ganj Branch, Ludhiana, PW2 Shailender Singh, Executive Officer, Bank of Punjab Limited, besides himself stepping into the witness box as PW3. The case of the petitioner during his examination under Section 313 Cr.P.C. was that the account was settled in the presence of Randhir Singh, Transporter and he had paid Rs.1,00,000/- on 3.4.1996, Rs.1,00,000/- on 22.4.1996, Rs.1,00,000/- on 8.5.1996 and Rs.1,50,000/- on 28.5.1996 and nothing was due against him. Despite receiving the aforementioned payments, the complainant had not returned the cheque by mis-representing that he had lost the same. In his defence, the petitioner had examined DW1 H.P. Bhardwaj, Advocate and DW2 Ranjit Singh. After hearing learned counsel for the parties and going through the evidence, the trial Court held that the complainant was successful in proving its case and the petitioner had also admitted his -2- Criminal Revision No.1091 of 2000 signatures on the cheque which he had issued in discharge of his liability. However, the plea of the petitioner of his having discharged whole of his liability of making repayments, had not been proved by any documentary evidence. Accordingly, the petitioner was held guilty under Section 138 of the Act and sentenced, as mentioned above. Even his appeal filed against his conviction and sentence was dismissed except for converting the amount of fine into compensation. I have heard learned counsel for the parties and perused the evidence brought on the record. It is an admitted fact that the petitioner had issued the cheque in question. However, according to him, he had already discharged his ability by paying an amount of Rs.1,00,000/- on three different occasions and another amount of Rs. 1,50,000/- on another. In view of the fact that the petitioner failed to prove factum of his having discharged his liability by paying the entire outstanding amount as he did not prove the said fact by any documentary evidence, both the learned Courts below were justified in holding that the petitioner had issued the cheque in question for a sum of Rs. 2,00,000/- to the complainant and it was for the sole purpose of discharging the outstanding liability. The cheque in question was initially presented on 7.3.1996, then on 9.3.1996 and thereafter on 16.3.1996. Even thereafter, the cheque was once again presented by the complainant and the same was sent for clearance by the complainant's bank to the banker of the accused on 29.5.1996 but it was, once again, dishonoured as the funds in the account of the petitioner were insufficient. Pursuant to said dishonouring of the cheque, the complainant had served notice dated 8.6.1996 upon the petitioner calling upon him to make payment of the cheque amount but this had no effect on the petitioner. The plea of the petitioner that after the presentation of the cheque on 16.3.1996, the -3- Criminal Revision No.1091 of 2000 complainant had served notice dated 29.3.1996 has been rightly rejected on the ground that the said notice was a forged document and got prepared by the petitioner in connivance with Shri H.P. Bhardwaj, Advocate as neither it was typed on the letter pad of the counsel nor postal receipts had been proved. Further, the date of presentation of the cheque and also the date of return of the same had not been mentioned in the notice. In his cross-examination DW1 Shri H.P. Bhardwaj, Advocate had stated that he had not obtained any power of attorney from the complainant before issuing notice dated 29.3.1996. He was also unable to tell the name of the person who had typed the notice. Though, he had maintained the office record regarding issuance of the notice yet he had not brought the same. Even the postal receipt regarding sending of the notice through registered AD post had not been brought by him. In view of the above, no case is made out for interfering in the conviction of the petitioner for the offence under Section 138 of the Act. As per the custody certificate produced by the learned State counsel, the petitioner had remained in custody as a convict from 9.9.2000 to 23.11.2000. Out of the said period of 2 months and 14 days, he remained on parole for 28 days. He has, thus, undergone an actual period of 1 month and 16 days in jail out of the sentence of six months imposed upon him. The petitioner, otherwise, has been facing the criminal proceedings since the year 1996. At the same time, it may also be noticed that the petitioner, in order to discharge his liability of Rs.2,00,000/-, had issued the cheque in question. The trial Court had sentenced the petitioner to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.1,00,000/-. However, the learned lower appellate Court converted the fine of Rs.1,00,000/- into compensation and directed that the same be paid by the petitioner to the complainant. Under the law, an accused held guilty under Section 138 -4- Criminal Revision No.1091 of 2000 of the Act can be burdened with liability to pay double the amount of the cheque. The cheque in question was of Rs.2,00,000/-. The petitioner has already been directed to pay an amount of Rs.1,00,000/- as compensation. Keeping in view all the attending circumstances, the Court is of the view that instead of sending the petitioner behind the bars, once again, his substantive sentence of imprisonment can be reduced to that already undergone by him, subject to his paying another amount of Rs.1,00,000/- to the complainant as compensation. Resultantly, the conviction of the petitioner for the offence under Section 138 of the Negotiable Instruments Act is maintained. However, his substantive sentence of imprisonment shall stand reduced to that already undergone by him in case he pays another amount of Rs.1,00,000/- to the complainant within six months from today. In the meantime, the amount of Rs.1,00,000/- imposed upon the petitioner initially as fine and lateron converted into compensation and earlier deposited by him with the trial Court vide Book No.130493 receipt No.28 dated 1.10.1999, photocopy of which has been produced by learned counsel for the petitioner, be released to the complainant. The revision is, accordingly, disposed of. ( T.P.S.MANN ) February 05, 2010 JUDGE satish -5-