Criminal Revision No.664 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.664 of 2005 Date of Decision 25.11.2010 Balwinder Kumar ...... Petitioner VERSUS State of Punjab and another ...... Respondents CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.Sandeep Sharma, Advocate, as Amicus Curiae, for the petitioner. Mr.O.P.Dabla, Deputy Advocate General, Punjab, for the respondent-State. ***** A.N.JINDAL, J: The legality of the judgment dated 15.03.2005 has been challenged vide which the Appellate Court has dismissed the appeal against the judgment dated 19.05.2004, passed by Sub Divisional Judicial Magistrate, Phagwara, convicting and sentencing the accused-petitioner (herein referred as 'the accused') to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.4,000/- under Section 138 of the Negotiable Instruments Act, 1881 (for brevity 'the Act'). It was further directed that 50% of the fine deposited by the accused shall be recovered by the complainant-respondent No.2 (herein referred as 'the complainant') as compensation. The factual matrix of the case is that the accused took a loan of Rs.70,000/- from the complainant and in order to discharge his legally enforceable liability, he had issued a cheque dated 02.07.2001, drawn on Kapurthala Central Co-operative Bank, Phagwara, in favour of the complainant. On presentation of the cheque, the same was returned with the remarks 'Stop the payment' vide memo dated 08.09.2001. A legal notice was served upon the accused but on failure to make the payment, the complainant filed a complaint. Criminal Revision No.664 of 2005 2 After recording the preliminary evidence, the accused was summoned. On appearance, notice of accusation was issued to him to which he pleaded not guilty and opted to contest. In support of his case, the complainant examined three witnesses in all. When examined under Section 313 Cr.P.C., the accused denied all the allegations and pleaded his false implication in the case. In defence, he examined Varinder Kumar (DW1), Vijay Saini (DW2) and he himself appeared as DW3. The trial resulted into conviction. The appeal, preferred by him was also dismissed. Arguments heard. Record perused. It has been contended by Mr.Sandeep Sharma, Advocate, as Amicus Curiae, appointed by this Court, that mere the remarks 'stoppage of payment' are not sufficient to bring the case within the purview of Section 138 of the Act. In this regard, it is observed that no such instructions were issued by the accused that the cheque should not be honoured as he has already made the payment but instructions regarding the stoppage of payment were issued by the accused on account of “insufficient funds” in his account, therefore, in such circumstances, the judgment delivered by the Apex Court in Modi Cements Ltd. Versus Kuchil Nandi 1998 (2) CCC 1 (SC) is applicable to the facts of the present case on all forms. Similarly, as regards the argument that the complainant could not establish that the cheque was not issued against any legally dischargeable liability, it has been observed time and again that the presumption is attached to the fact that no cheque or draft under the Act, as Criminal Revision No.664 of 2005 3 issued by its drawee, would be treated as drawn in discharge of his some legally enforceable liability. The accused has failed to rebut the presumption operating under Section 139 of the Act. No other argument has been raised. Both the Courts below have returned the concurrent findings of fact that the cheque, as issued by the accused in discharge of his legally enforceable liability, has been dishonoured by the bank, therefore, certainly the offence committed by him is covered under Section 138 of the Act. No such illegality much less irregularity or perversity has been shown in the judgment, warranting interference by this Court. Now coming to the quantum of sentence, it is noticed that the occurrence took place way back in the year 2001; the petitioner-accused has suffered a lot of agony on account of the pendency of proceedings in the Courts for the last nine years and the sword of sentence remained hanging over his head since then. He has already undergone more than 2½ months of the substantive sentence. Under the peculiar circumstances of the present case, it would be in the fitness of things to reduce the sentence to some extent. Resultantly, this petition is dismissed with the modification in the sentence which is reduced to six months without any alteration in the sentence of fine. Amicus Curiae would be at liberty to claim remuneration from the competent authority as per rules. (A.N.Jindal) Judge 25.11.2010 mamta-II