Criminal Revision No.1867 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1867 of 2004 Date of decision 08.10.2010. Charanjit ...... Petitioner. versus State of Punjab and another ...... Respondent. Present : Mr. Ishwar Lal, Advocate for the petitioner. Mr. Raghbir Chaudhary, Senior D.A.G. Punjab. Mr. Puneet Singla, Advocate, for Mr. D.K.Bhatti, Advocate for respondent No.2. Criminal Revision No.1868 of 2004 Charanjit ...... Petitioner. versus State of Punjab and another ...... Respondent. Present : Mr. Ishwar Lal, Advocate for the petitioner. Mr. Raghbir Chaudhary, Senior D.A.G. Punjab. Mr. Puneet Singla, Advocate, for Mr. D.K.Bhatti, Advocate for respondent No.2. CORAM :- HON'BLE MR.JUSTICE K.C.PURI. K.C.PURI, J. Criminal Revision No.1867 of 2004 2 Vide this order I intend to dispose of two Criminal Revision Petition No.1867 of 2004 and Criminal Revision Petition No.1868 of 2004 filed by the same petitioner against the judgments dated 12.8.2004 passed learned Additional Sessions Judge, Jalandhar, who dismissed the appeal preferred by the accused-petitioner against the judgments and orders dated 3.3.2003 passed by learned Judicial Magistrate Ist Class, Jalandhar in two different complaints between the same parties under Section 138 of the Negotiable Instruments Act (in short – the Act), vide which he was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of `5000/-, and in default of payment of fine, he was directed to further undergo imprisonment for two months. Since common question of law and facts are involved between the same parties, so both the petitions are being disposed of with the common order. For convenience, facts are being taken from Criminal No.1867 of 2004. The facts in brief are that the accused purchased timber from the complainant and has issued cheque bearing No.035952 dated 25.05.2001 for `74,847/- in favour of the complainant, drawn on Jalandhar Central Co-op. Bank Ltd. B.O. Dingrian with the assurance that the same would be honoured on its presentation. The complainant present the said cheque through his bankers namely UCO Bank, Bhargo Camp, Jalandhar, but the same was dishonored with the memo “insufficient funds.” The accused had intentionally withhold the payment with ill intention and has committed breach of trust to defraud him. He got served the accused with legal notice date 27.06.2001 to make the payment of the dishonored cheque within a period of fifteen days from the receipt of notice, but the accused Criminal Revision No.1867 of 2004 3 failed to make the payment. On the basis of preliminary evidence, accused was summoned under Section 138 of the Act. Finding a prima facie case against the accused, he was given notice under Section 138 of the Act, to which he pleaded not guilty and claimed trial. In order to prove his case, complainant has examined CW1 S.K. Jain, Manager UCO Bank, Bhargo Camp, Jalandhar, CW-2 Shri Dalbir Singh, Asst. Manager, Jalandhar Central Co- operative bank and he himself appeared as CW-3. After close of the complainant evidence, statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, in which all the incriminating circumstances appearing against him were put to him for eliciting his explanation, to which he pleaded his false implication and innocence. The accused opted to lead defence evidence, but he did not examine any witness in his defence. After hearing the learned counsel for both the parties and going the evidence, the learned Judicial Magistrate convicted and sentenced the accused to undergo rigorous imprisonment for six months and to pay a fine of `5000/- and in default of payment of fine, to further undergo imprisonment for two months. Feeling aggrieved against the said judgments, the accused preferred an appeal before the learned Additional Sessions Judge, Jalandhar. The learned Additional Sessions Judge, Jalandhar, after hearing the learned counsel for the parties and after appraisal of the evidence, dismissed both the appeals vide judgments dated 12.8.2004. Criminal Revision No.1867 of 2004 4 Feeling dis-satisfied with the aforesaid judgments and orders, the present revision petition has been filed. I have heard learned counsel for the parties and have gone through the records of the case. Learned counsel for the petitioner has submitted that at the time of admission of revision petition `20,000/- each were paid to the learned counsel for the complainant. It is further submitted that cheques in question are in favour of M/s Malhotra Timber Store i.e. in favour of the firm but the complaint has been filed by Brij Malhotra describing himself as partner of M/s Malhotra Timber Store, Link Road, Jalandhar. Brij Malhotra was not competent to file the complaint on behalf of the firm M/s Malhotra Timber Store. Forms A and C have not been duly proved on the file. So, it is contended that the complaints have not been filed by a competent person. So, in view of authority Firm Seth Hiralal Hazarilal vs. Jagan Nath, AIR 1957 Rajasthan 298 , the present complaints are liable to be dismissed. I have carefully considered the submission made by both the sides and have gone through the records of the case. So far as authority Firm Seth Hiralal Hazarilal's case (supra) is concerned that relates to Section 22 of the Limitation Act, in respect of filing the suit and that was a case of second appeal and it was held that if a case for bringing on record a new party is to be made out then Section 22 of the Limitation Act, will come in operation. The cheques in question are in favour of the firm and Brij Criminal Revision No.1867 of 2004 5 Malhotra, being partner of the firm, has a right to file the complaint. The documents on the file clearly shows that Brij Malhotra is the partner of the firm M/s Malhotra Timber Store. So, he was competent to file the present complaints. So far as authority Suresh Sharma vs. M/s New Coolwell Industries and Others 2009 Crl.L.J. 4031 is concerned that authority is distinguishable as in that case, the complaint was filed in the personal capacity although the cheque was in favour of the firm. In the present case, the firm has filed the present complaint through Brij Malhotra. So, the above said authority is distinguishable on the facts of the present case. Learned counsel for the petitioner has further submitted that out of the disputed cheque amount, `20,000/- each have already been paid. The petitioner, in each case, has undergone incarceration for a period of two months against substantive sentence of imprisonment for six months. The cheque in question relates to the year 2001. So, the prayer has been made for reduction in sentence. I have carefully considered the submission. It is not disputed that out of the cheque amount `20,000/- have already been paid to the counsel for the complainant by the accused at the time of grant of concession of bail. It is also not disputed that plaintiff has undergone incarceration for a period of two months out of the substantive sentence of six months. So, taking into account the totality of the circumstances, the sentence of the fine is enhanced to `22,000/- instead of `5,000/- as ordered by the trial Court. The sentence of imprisonment stands reduced to the Criminal Revision No.1867 of 2004 6 already undergone. It so seems that `5000/- have been deposited by the revisionist before the trial Court. Therefore, the petitioner is directed to deposit Rs.17,000/- more in addition to the amount awarded by the trial Court as fine and in default of payment of the said amount, he shall further undergo imprisonment for two months. The said amount of Rs.17,000/- shall be deposited by the revisionist within two months from today, failing which he shall be called upon to undergo imprisonment as ordered above in default clause. Both the revision petitions stand disposed of with the above modifications in the sentence. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE October 08 , 2010 sv