Criminal Revision No. 1509 of 2011 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1509 of 2011 Date of decision : July 21, 2011 PK Singh ....Petitioner versus Lt. Col. KS Dhillon (Retd) ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Ms. Anita Sharma, Advocate, for the petitioner L.N. Mittal, J. (Oral) Accused P.K.Singh having been convicted and sentenced by the courts below has filed the instant criminal revision petition. Respondent Lt. Col. KS Dhillon (Retd) filed criminal complaint against the petitioner-accused under section 138 of the Negotiable Instruments Act, 1881 (in short, the Act). The complainant alleged that he gave loan of Rs 4 lacs to the accused in June, 2002 on the request of the accused and on his assurance that the loan amount will be repaid within six months. The accused issued post dated cheques No. 470130 and 470131 dated 10.1.2003 for one lac rupees each, to which the instant complaint pertains. The complainant also issued four other cheques Criminal Revision No. 1509 of 2011 -2- bearing same date for Rs 50,000/- each but bank account pertaining to the said cheques had already been closed before issuance thereof and therefore, separate complaint under Indian Penal Code was filed qua said cheques. The two cheques in question were dishonoured by the bank on presentation. Demand notice was sent but the accused did not pay the cheque amount necessitating the filing of the complaint. The complainant led evidence regarding issuance of cheques by the accused to discharge loan liability and the evidence of dishonouring of the cheques and sending of demand notice. The accused in his examination under section 313 of the Code of Criminal Procedure alleged that he had issued blank undated cheques in question to the complainant as security for amount to be invested by the complainant with the accused but the complainant failed to invest the amount and failed to issue necessary bankers cheque for investment of the amount. In defence the accused examined two witnesses Shashi Kant DW1 and Ishwar Singh DW2 who were employees of the accused. They broadly stated according to the defence version. Learned Judicial Magistrate Ist Class, Chandigarh vide judgment and order dated 18.8.2010 convicted the accused under section 138 of the Act and after hearing the parties on quantum of sentence, sentenced the accused to undergo rigorous imprisonment for six months and to pay three lacs rupees as compensation. Appeal preferred by the accused against his conviction and sentence has been dismissed by learned Additional Sessions Judge, Chandigarh vide judgment dated 8.7.2011. Criminal Revision No. 1509 of 2011 -3- Feeling aggrieved, the convict has preferred the instant revision petition. On the preceding date of hearing, learned counsel for the petitioner sought adjournment to seek instructions, if the petitioner is willing to pay the cheque amount. Learned counsel for the petitioner after seeking instructions states that the petitioner is not ready and willing to pay the cheque amount because he had not borrowed any amount from the complainant. I have heard learned counsel for the petitioner and perused the case file. The petitioner has admitted issuance of the two cheques in question. There is ample evidence on record to depict that the cheques were dishonoured and thereafter the complainant sent demand notice to the accused by registered AD post but the accused failed to pay the amount of the cheques. The complainant has, thus, proved his case. Learned counsel for the petitioner emphatically contended that advancement of the loan by the complainant to the accused is not proved and therefore, offence under section 138 of the Act is not made out. The contention is untenable. Issuance of the cheques has been admitted by the accused. Under section 118 of the Act, there is presumption that the chequest were issued for consideration. Further under section 139 of the Act, there is presumption that the cheques in question were issued in discharge of debt or other liability referred to in section 138 of the Act. The aforesaid presumption has not been rebutted by the accused. Defence evidence has been rightly discarded by the courts below because veracity of Criminal Revision No. 1509 of 2011 -4- both the defence witnesses was completely impeached in their cross- examination. Moreover, the defence version is inherently and intrinsically unreliable and untenable. It is the case of the accused-petitioner that the complainant had approached him to invest money in his (petitioner's) company and accordingly accused gave undated blank signed cheques to the complainant who was to give the loan amount on the next day by way of bankers cheque but did not give the same. It is completely unbelievable that the accused would give undated blank signed cheques to the complainant in advance although the complainant had approached the accused to invest money in the company of the accused. The accused would have issued the cheques only after receiving loan amount and not prior to it. In this context, it is further significant to notice that according to the accused the cheques had been issued about four years prior to the date which has been written on the cheques. However, during this period of four years the accused never protested to the complainant nor demanded back the blank signed cheques from the complainant. Consequently, the defence version has been rightly discarded. Presumption arising under sections 118 and 139 of the Act has not been rebutted. Learned counsel for the petitioner also contended that the demand notice was not received by the petitioner as AD receipt does not bear the signatures of the accused. The contention cannot be accepted. Notice was sent by registered post on correct address and AD receipt was also received back. Consequently, the aforesaid contention is bereft of any merit. Criminal Revision No. 1509 of 2011 -5- For the reasons aforesaid, I find that the petitioner-accused has been rightly convicted by the courts below as the complainant-respondent has proved his case beyond reasonable doubt. Consequently, there is no merit in the instant revision petition which is accordingly dismissed in limine. ( L.N. Mittal ) July 21, 2011 Judge 'dalbir'