Crl.Rev. No.67 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Rev. No.67 of 2006 Date of Decision: 10.03.2011 Gurdev Singh ...Petitioner Vs. M/s Punjab Agricultural Traders ...Respondent BEFORE: HON'BLE MR.JUSTICE GURDEV SINGH Present: Mr.Karanjit Singh, Advocate, for the petitioner. Mr.O.P.Kamboj, Advocate, for the complainant. --- 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.whether the judgment should be reported in the Digest. --- Gurdev Singh, J. (Oral) The complaint was filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') against the petitioner/accused, Gurdev Singh, as sole proprietor of M/s Gurdev Pesticides, by M/s Punjab Agricultural Traders, through its sole proprietor Inder Singh, complainant/respondent. As per the contents of that complaint, both the parties are dealing in the purchase and sale of pesticides. The accused purchased pesticides from the complainant and in discharge of his Crl.Rev. No.67 of 2006 2 liability he issued cheque No.821/CA/12/681554 dated 20.5.1997 for Rs.50,000/- drawn on Indian Overseas Bank, Branch Ferozepur City. When that cheque was presented to his banker by way of collection, through the banker of the complainant, the same was dishonoured, vide memo dated 20.5.1997 on account of 'insufficient funds' in the account of the accused. The complainant approached the accused and disclosed that fact, who assured him that there would be sufficient funds in his account and that he should present the cheque again on 13.6.1997. On that assurance of the accused, the complainant again presented the cheque for collection through his own banker on 13.6.1997, but the same was again dishonoured on account of' insufficient funds' in the account of the accused. He approached the accused with the request to make the payment of the cheque amount but he paid no heed. Then he served notice dated 28.6.1997 through his counsel and still that amount was not paid. On the basis of the preliminary evidence produced by the complainant, the JMIC, Ferozepur found sufficient grounds for proceeding against the accused under Section 138 of the Act. He was summoned accordingly. On his appearance before the trial court, notice of that offence was given to him, to which he pleaded not guilty and claimed trial. To prove his guilt, the complainant examined himself as CW 3, R.K.Dhawan,Clerk-cum-Cashier (CW 1) and Naresh Kashayap, Clerk (CW 2). After the complainant closed his evidence, the accused was examined by the trial court and his statement was recorded under Section 313 of the Code of Criminal Procedure. All the incriminating circumstances appearing against him in the evidence of the complaint were put to him in order to enable him to explain the same. He did not deny all those incriminating Crl.Rev. No.67 of 2006 3 circumstances. He admitted that the cheque was presented to his banker for payment and the same was dishonoured and that after he was told about dishonouring of cheque he assured the complainant to present the same again to his banker and that he would deposit the amount of the cheque in his account, and that when the cheque was presented second time the same was again dishonoured on account of insufficient funds in his account. While denying the other circumstances, first he pleaded that he is not having an account in Indian Overseas Bank, Ferozepur and that he never issued cheque Ex.C-1 and then he changed his plea and stated that he had given the cash amount of the cheque to the complainant. He was called upon to enter on his defence and thereafter with the permission of the court he appeared as his own witness as DW 1. After going through the evidence and hearing both the sides, the Chief Judicial Magistrate, Ferozepur, vide his judgment dated 1.4.2003, convicted the accused for the offence under Section 138 of the Act and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.3,000/- and in default thereof to further undergo rigorous imprisonment for a period of one month. The accused preferred an appeal against that conviction and sentence, which was dismissed by the Additional Sessions Judge Ferozepur, vide his judgment dated 13.12.2005. Now the present revision has been preferred against that conviction and sentence. I have heard learned counsel for both the sides. The only submission of the learned counsel for the petitioner/accused is that the complainant failed to prove that the cheque was issued by the accused in discharge of legally enforceable liability as he Crl.Rev. No.67 of 2006 4 failed to prove on record the account books in order to prove that he had sold the pesticides to the accused and cheque was issued in lieu of the price thereof. It is a case where most of the facts were admitted by the accused in his statement recorded under section 313 Cr.PC. He admitted the issuance of cheque, dishonouring thereof on account of insufficient of amount in his account and giving assurance to the complainant for presenting second time on the plea that there would be sufficient funds available in his account for the honouring of cheque. He also stated in the statement that he had given the amount of cheque. Thereafter he appeared in the witness box as DW 1, after obtaining permission of the learned trial court. At that time he took a somersault. He came with the statement that the amount was borrowed by his father in the year 1996 and it was his father who had paid a sum of Rs.50,000/- to the complainant in the year 1997. During his cross-examination he admitted in so many words that he himself and the complainant are dealing in pesticides though he denied the fact that he had purchased the pesticides from him and cheque in question was issued in lieu of the price thereof. From the evidence produced by the complainant it stands proved that cheque Ex.C-1 was issued by the accused. It was categorically stated by Inder Singh complainant CW 3 that the accused purchased pesticides from him and in discharge of that liability issued the cheque. In support of that oral statement the complainant has also proved on record the copy of the account book Ex.C-7, which is the account of the accused being maintained by the complainant. As per that account book he purchased Crl.Rev. No.67 of 2006 5 goods worth Rs.92,600/- from 21.05.1996 to 21.06.1996. In these circumstances presumption can well be drawn under Section 139 of the Act that this cheque was issued in discharge of legally enforceable debt. It has recently been held by Apex Court in Rangappa Vs. Mohan 2010 (3) RCR (Criminal) 164 that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. Thus, no fault can be found with the finding recorded by the learned trial court, which were upheld by the learned appellate court, that the cheque was issued by the accused in discharge of legally enforceable debt which on presentation to his banker was dishonoured on account of insufficient funds in his account and he failed to pay the amount of that cheque to the complainant in spite of issuance of legal statutory notice. There is no merit in this revision petition and the same is hereby dismissed. Accused/petitioner be taken in custody to serve the sentence imposed upon him. (Gurdev Singh) 10.03.2011 Judge rp