Criminal Revision No.342 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (i) Criminal Revision No.342 of 2005 Date of Decision 19.11.2010 Raj Rani ...... Petitioner VERSUS M/s Chawla Fertilizers ...... Respondent (ii) Criminal Revision No.782 of 2005 M/s Chawla Fertilizers ...... Petitioner VERSUS Raj Rani ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Ms.Hemlata Thakur, Advocate, as Amicus Curiae, for the petitioner Raj Rani in Crl. Revision No.342 of 2005. Mr.Rakesh Gupta, Advocate, for the petitioner in Criminal Revision No.782 of 2005 and for respondent in Criminal Revision No.342 of 2005. None for respondent in Criminal Revision No.782 of 2005. ***** A.N.JINDAL, J: This order of mine shall dispose of the aforesaid two revision petitions, one preferred by the accused-petitioner Raj Rani (herein referred as 'the accused') for setting aside the conviction and the other preferred by the complainant M/s Chawla Fertilizers for enhancement of the sentence. Both having arisen out of the same judgment dated 04.02.2005, passed by Addl. Sessions Judge, Kaithal, are decided together. The factual matrix of the case is that the accused Raj Rani, proprietor, M/s Mittal Pesticide Kaithal, in order to discharge her legally Criminal Revision No.342 of 2005 2 enforceable liability, issued a cheque No.202860 dated 11.08.1999, drawn upon Canara Bank, Kaithal for a sum of Rs.25,000/- in favour of the complainant. On presentation of the said cheque on 06.01.2000, the same was dishonoured on the same day with the remarks 'exceeds arrangement'. The complainant also served a notice under Section 138 of the Negotiable Instruments Act (for brevity 'the Act') through Sh.A.K.Nirwani, Advocate on 07.01.2000. However, the said notice was returned with the endorsement that the accused had refused to take the notice. Consequently, the present complaint was filed within stipulated time. After recording the preliminary evidence, the accused was summoned and notice of accusation was issued to him, who opted to contest the same, therefore, the complainant examined S.K.Mangla, Officer, Canara Bank (PW1), Jaipal, clerk to Sh.A.K.Nirwani, Advocate (PW2) and Rajesh Chawla, complainant (PW3). He also proved documents Ex.C1 to Ex.C10 in evidence. When examined under section 313 Cr.P.C., the accused denied all the allegations and pleaded her false implication in the case. In defence, she examined Bhim Singh, Tax Assistant, Income Tax Office, Kaithal (DW1), who placed on record photo-stat copies of audit reports Ex.D1 & Ex.D2 and photo-stat copies of statements of accounts of complainant Ex.D3 & Ex.D4. The trial resulted into conviction. The appeal, preferred by her was also dismissed. It may be mentioned that the sentence of four months, as awarded by the trial Court, under Section 138 of the Negotiable Instruments Act (for brevity 'the Act') was reduced to two months by the Appellate Criminal Revision No.342 of 2005 3 Court. Since the accused never put in appearance to contest the case herself or through counsel, therefore, finding no option, Ms.Hemlata Thakur, is appointed as Amicus Curiae to assist this Court. She has come ready with the arguments and reiterated the pleas, as set up before the First Appellate Court. She has contended that notice Ex.C3 contains some additions and cuttings, therefore, the same cannot be said to be valid notice. Since the bank returned the cheque with the remarks “stop the payment”, therefore, the same is not covered under Section 138 of the Act. It has been further urged that from the income tax returns and the bank account, it is clear that the account number of M/s Mittal Pesticides is not mentioned on the cheque, therefore, the said cheque could not be accounted for against the account of M/s Mittal Pesticides. Having given my deep thought to the contentions, none of the arguments weigh with the mind of the Court. The notice served upon the accused was returned with the remarks 'refused to accept'. Sh.Jaipal, Clerk of Sh.A.K.Nirwani, Advocate (PW2) has duly proved the notice and has also proved the registered AD letter Ex.C7 and postal receipt Ex.C8. Mere fact that notice contains some cuttings is immaterial to brush aside the notice particularly when the cheque, issued by the accused, does not contain any such defect. Similarly, the account number of the firm has been mentioned in the cheque and the cheque was not returned by the bank on the ground that it does not bear the name of the firm or account number, therefore, the said argument that due to the wrong account number, the cheque could not be encashed, is without any merit. As regards the third argument that the accused had stopped the Criminal Revision No.342 of 2005 4 payment, is also without any merit as the cheque was returned by the bank with the remarks 'Exceeds arrangement', thus, the findings returned by both the Courts below regarding the guilt of the accused cannot be dissented by substituting another opinion by this Court. The evidence appears to have been appreciated by both the Courts below in the right perspective. As regards the revision for enhancement, the complainant has been hankering after the accused since 11.08.1999 when the cheque for payment was issued by her against the legally enforceable liability but the accused never bothered to make the payment. After preferring this revision petition in this Court, she has not bothered to pursue the same, thus, while examining such conduct of the accused, this Court deems it appropriate to award some compensation in favour of the complainant. For the aforesaid reasons, the revision petition No.342 of 2005 preferred by the accused Raj Rani, is dismissed. At the same time, while disposing of the revision petition No.782 of 2005, preferred by the complainant M/s Chawla Fertilizers, the petitioner is awarded Rs.50,000/- as compensation i.e. Rs.25,000/- on account of the cheque amount and a sum of Rs.25,000/- on account of damages suffered by it which would be paid by the accused within three months from today. Amicus Curiae would be at liberty to claim remuneration from the competent authority as per rules. (A.N.Jindal) Judge 19.11.2010 mamta-II