IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 50 & 51 of 2004 Date of Decision: 16th September, 2010 __________________________________________________________ 1. Cr. Revision No. 50 of 2004 P.K. Tibriwal ….Petitioner. Versus M/s Ruchira Papers Ltd. ….Respondent. 2. Cr. Revision No. 51 of 2004 K.K. Tibriwal ….Petitioner. Versus M/s Ruchira Papers Ltd. ….Respondent. _______________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. _______________________________________________________ Cr. Revision Nos. 50 & 51 of 2004 For the Petitioners: Mr. Ajay Mohan Goel, Advocate For the Respondents: Mr. K.D. Sood, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). Both these petitions are being disposed of by a common order as they arise out of the same judgment of the learned Sessions Judge, Sirmour at Nahan. The petitioners herein were convicted to undergo simple imprisonment for six months each for offence under 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 Section 138 of the Negotiable Instrument Act and to pay a fine of Rs. 1 lac each. In default of payment of fine, they were sentenced to undergo simple imprisonment for three months each. 2 It is undisputed before me that an amount of Rs. 1 lac each has been deposited by both the petitioners. Petitioner K.K. Tibriwal deposited the fine on 2.6.2003 vide receipt No. 56899 and petitioner P.K. Tibriwal deposited the fine on 30.5.2003 and 2.6.2003 vide receipts No. 56893 and 56898 respectively before the Chief Judicial Magistrate, Nahan. 3 The case against the petitioners was that both are partners in M/s Bala Ji Trading Company at Calcutta. The complainant alleged that it was manufacturing craft paper at Kala Amb from where the petitioners were purchasing it. For this purpose, several cheques were issued by them in order to discharge their liability. The complainant submits that seven cheques: Exhibits. Cheque No. Amount Date Ext.P2 139650 Rs. 1,69,871 13.10.1999 Ext.P3 139648 Rs. 1,92,559 13.10.1999 Ext.P4 139649 Rs. 1,82,056 13.10.1999 Ext.P5 139647 Rs. 1,75,680 13.10.1999 Ext.P6 866200 Rs. 2,00,000 08.11.1999 Ext.P7. 888902 Rs. 2,00,000 15.11.1999 Ext.P8 888901 Rs. 2,00,000 15.11.1999 Amounting Rs. 13,20,166/- in all drawn on the Union Bank of India, at Calcutta were issued by the petitioners. Ext.P2 to Ext.P8 were issued under the signatures of P.K. Tibriwal and when presented by the complainant to his bankers in Central Bank of India, at Nahan. They were returned with memos Ext.P-9 and Ext.P-10 with remarks “exceeds arrangements”. Thereafter, notice dated 17th December, 1999 Ext.P-11 3 was issued to the petitioners by the complainant through its Advocate Mr. Amrit Singh Shah calling upon them to make the amount good. In reply to this notice, the accused replied that Ext.CW1/T.PX in the following terms: “………………………………………………… Dear Sirs, Under instructions from and as a legal agent of my client aforesaid, I do hereby state that my client have received legal notice dated 17/12/1999 and beg to state that due to slog market and financial stringency my client could not honour the commitments in time. However, my clients have explained their difficulty to your over phone and you have been kind enough to allow my client time to make payments in respect of the dues. My client undertake to make the entire payment to you as early as possible but not at a time and definitely within a period of one year’s time. Considering the long standing business relationship between you and my client you will be good enough to allow time to my clients to make payment. …………………….” This was also followed by another communication dated 31st October, 2000, Ext.PX/Y acknowledging the amount due and payable to the complainant. 3 On the evidence of CW1 Sushil Sharma, Accountant of M/s Ruchira Papers, PW2 Yash Pal Deputy Manager Central Bank of India, Nahan the Court held that the case of the complainant proved and sentenced the petitioners. It may be noticed that both the petitioners appeared as DW1 and DW2 and admitted the issuance of cheques but adopted the stand that these were issued as security from time to time and they have been filled in by the complainant for its convenience. The second defence in their evidence taken by the petitioners is that the entire liability was liquidated though no document was produced on record to substantiate this fact, although in reply to the notice as also the 4 subsequent communication as noticed above they admitted that cheques have been issued and the petitioners were unable to fulfill their commitment. Appeals were preferred against the judgment of the trial Court. 4 In appeal, attempt for reconciliation was made, but no payment had been made. This fact is noticed by the learned Appellate Court in para 8 of its judgment. On the evidence on record, the learned Appellate Court affirmed the findings of the trial Court and dismissed the appeal. Two revision petitions have been filed. 5 I have heard learned counsel appearing for the petitioners and gone through the record. 6 The same points as urged before the learned trial Court have been reiterated here. I am unable to persuade myself to hold that the entire liability has been liquidated. There is nothing on record to show that any amount has been paid by the petitioners herein after issuance of the cheques. The best proof was the production of any Bank draft etc. or other means and from the accounts of the petitioners. This evidence has not been produced. No effort or attempt has been made by the petitioners herein to place on record any evidence. Therefore, this submission requires to be rejected. 7 On the second submission made by learned counsel appearing for the petitioner that the Negotiable Instruments Ext.P2 to P8 were issued as security, I cannot accept this submission in view of the categoric admission made by the petitioners in reply to the legal notice Ext.CW1/E and Ext.PC. Thus, there is no merit in these revision petitions which are dismissed. A direction is issued that the amount deposited by the petitioners herein shall be released to the bank account of the respondent. The substantive sentence of imprisonment is set aside 5 subject to the condition that each of the petitioners herein shall pay Rs.50,000/- each to the respondent in addition to the amount already deposited. This amount shall be deposited by the petitioners herein within a period of three month from today before the trial Court, failing which the sentence of imprisonment shall revive. On such deposit, the amount shall be released to the complainant in its bank account. Petitions disposed of. (Dev Darshan Sud) Judge September 16th , 2010(ms)