Criminal Revision No.1181 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1181 of 2003 Date of Decision 15.02.2010 Surjit Singh son of Sardar Bhagat Singh ...... Petitioner VERSUS State of Punjab and another ...... Respondent(s) CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.K.S.Kahlon, Advocate, for the petitioner. Mr.A.S.Jattana, Addl. Advocate General, Punjab, for the respondent-State of Punjab. ***** A.N.JINDAL, J: This is petitioner's revision petition against the judgment dated 17.05.2003, passed by Addl .Sessions Judge, Jalandhar, dismissing his appeal against the judgment dated 27.04.2002, passed by Judicial Magistrate Ist Class, Jalandhar, convicting and sentencing him to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/- for the offence under Section 138 of the Negotiable Instruments Act (herein referred as 'the Act'). The case is based on the cheque dated 20.10.1997, for a sum of Rs.2,25,000/- issued by the accused in favour of respondent No.2- complainant (herein referred as 'the complainant') in lieu of the legally enforceable liability, with the assurance that the same would be honoured. The complainant had tendered the said cheque in the bank but the same was returned on 22.10.1997 with the remarks “Exceeds Arrangement”. On the request and assurance of the complainant, the cheque was again tendered on 26.11.1997 but the same was again dishonoured. The complainant issued a registered notice on 09.12.1997 but to no response, hence the complaint was Criminal Revision No.1181 of 2003 2 filed. On the basis of preliminary evidence, the accused was summoned and notice of accusation was served upon him to which he pleaded not guilty and claimed trial. In order to substantiate the notice of accusation, the complainant examined herself as PW1 and Rajinder Singh Branch Manager, the Jalandhar Central Cooperative Bank Limited, Maqsoodan (Jalandhar) as PW2 and closed his evidence. When examined under Section 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and submitted that he wanted to send his son Kuljinder Singh abroad. For this purpose, he contracted the complainant, who after receiving a sum of Rs.2,00,000/- in cash and the cheque of Rs.2,25,000/-, promised to send his son abroad. He failed to send his son abroad for want of visa and even did not return the amount. Ultimately, on account of the tension, his son met with an accident and collapsed. Thus, the accused considered himself cheated, therefore, fault lay with the complainant and not with the accused. No evidence was led in defence. On appreciation of the evidence, the trial Court convicted and sentenced the accused accordingly. His appeal was also dismissed. Arguments heard. Record perused. The necessary essentials for proving the offence under Section 138 of the Act are reiterated as under:- (1)the cheque issued, should be for the discharge in whole or part debt or other liability; Criminal Revision No.1181 of 2003 3 (2) it should have been presented within six months or within the period of its validity whichever is earlier, (3) The payee and holder in due course is required to issue notice in writing to the drawer within 15 days of the receipt of information regarding the dishonour of the cheque, (4) after the receipt of the said notice,the drawer should have failed to respond within 15 days of the receipt of the notice. (5)The complaint must be made within one month from the service of notice. Now while putting the present case on the aforesaid essentials, it is revealed that the cheque Ex.P1 was issued on 22.10.1997 and the same is admitted to have been issued by the accused. The ample evidence has been lead in order to establish that the cheque was dishonoured on 26.11.1997 vide memo Ex.P2 and the statement of account reveals that the accused had no sufficient funds in the bank on 26.11.1997. It is also established that notice was duly issued and the complaint was filed within time. The plea set up by the accused is that there were no business dealings between the parties, as such, question of issuing the cheque for legally enforceable liability does not arise. Having gone through the entire evidence on the record and the statement of the accused under Section 313 Cr.P.C., the accused has himself admitted that he had dealings with the complainant and had issued cheque which could be encashed by the accused. As such, Section 118 read with Section 139 of the Act raises a presumption with regard to the act that it was against legally enforceable liability. Hon'ble Apex Court in case Maruti Criminal Revision No.1181 of 2003 4 Udyog Limited versus Narender 2001 (3) RCR (Crl.) 545 has observed as under:- “In view of the express provision of Section 139 of the Negotiable Instruments Act, 1881, a presumption must be drawn that the holder of the cheque received the cheque of the nature referred to in Section 138 for the discharge of any debt or other liability unless the contrary is proved.” In Hiten P.Dalal Versus Bratindranath Banerjee 2001 (3) RCR (Criminal) 460, the Hon'ble Apex Court has observed in para Nos.18 and 19 as under:- “That the four cheques were executed by the Appellant in favour of the Standard Chartered Bank (hereinreferred to as the Bank), has not been denied nor was it in dispute that the cheques were dishonoured because of insufficient funds in the Appellants' account with the drawer, viz. Andhra Bank. Because of the admitted execution of the four cheques by the appellant, the Bank was entitled to and did in fact rely upon three presumptions in support of its case, namely, under Sections 118, 138 and 139 of the Negotiable Instruments Act. Section 118 provides, inter-alia, that until the contrary is proved it shall be presumed that every negotiable instrument was made or drawn for consideration and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted endorsed, negotiated or transferred for consideration. The presumption which arises under Section 138 provides more specifically that where any cheque drawn Criminal Revision No.1181 of 2003 5 by a person on an account for payment of any amount of money for the discharge in whole or in part of any debt or other liability, is returned by the drawer bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque. Such persons shall be deemed to have committed an offence and shall be punished with imprisonment for a term which may extend to twice the amount of the cheque, or with both. The nature of the presumption under Section 138 is subject to the three conditions specified relating to presentation, giving of the notice and the non-payment after receipt of notice by the drawer of the cheque. All three conditions have not been denied in this case. “The Appellant's submission that the cheques were not drawn for the discharge in whole or in part of any debt or other liability is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This Section provides that “it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge in whole or in part, of any debt or other liability.” The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability.” Again in K.N.Beena versus Munivappan 2001 (4) RCR (Criminal) 545 the Hon'ble Apex Court had again taken an identical view Criminal Revision No.1181 of 2003 6 which was taken in Hiten P.Dalal's Case (Supra). It was observed in para No.6 as under:- “In our view the impugned judgment cannot be sustained at all. The judgment erroneously proceeds on the basis that the burden of proving consideration for a dishonoured cheque is on the complainant. It appears that the learned Judge had lost sight of Section 118 and 139 of the Negotiable Instruments Act. Under Section 118, unless the contrary was proved, it is to be presumed that the Negotiable Instrument (including a cheque) had been made or drawn for consideration. Under Section 139 of the Code, the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus, in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused.” Reliance has also been placed upon the judgment of Hon'ble Apex Court delivered in case K.Bhaskaran versus Sankaran Vaidbvan and another AIR 1999 SC 3762, wherein it has been observed in para No.9 as under:- “As the signature in the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the Act can legally be inferred that the cheque was made or drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of Criminal Revision No.1181 of 2003 7 the cheque received it for the discharge of any debt or liability. The burden was on the accused to rebut the aforesaid presumption. The trial Court was not persuaded to reply on the interested testimony of DW1 to rebut the presumption. The said finding was upheld by the High Court. It is not now open to the accused to contend differently on that aspect.” In view of the express provisions regarding presumption as contained in Sections 118 and 139 of the Act, let us see whether the petitioner/accused has rebutted the presumption ? No defence evidence has been led by the accused, therefore, his version that he paid in advance Rs.2 lacs to the complainant is not believable. No complaint regarding any cheating or fraud has been lodged by the petitioner that he was duped of Rs.2 lacs in cash as well as cheque Ex.P1. This balled plea set up by the accused only on 06.10.2001 in his statement under Section 313 Cr.P.C., that too unsupported by any evidence cannot be believed. It has been next contended that complainant himself in his cross-examination has admitted that the cheque was neither given for business transaction nor for a liability. But mere saying these words in the cross-examination does not absolve the liability of the accused. The accused had himself signed the cheque and admitted its execution. Thus, the presumption under Section 118 of the Act is applicable. Since the presumption under Section 139 of the Act does not stand rebutted by any legal evidence then it would be presumed that the cheque was issued for legally enforceable liability but the accused failed to rebut the same. Therefore, I am of the considered view that the cheque was given for a lawful debt or other liability. Criminal Revision No.1181 of 2003 8 As regards the argument with regard to service of notice, there is a receipt Ex.P4 for Rs.12/- dated 10.12.1997 which appears to have been issued by the postal authorities on 10.12.1997. It appears that the postal receipt has been issued on the proforma meant for telephone bill yet it reveals that the receipt Ex.P4 was issued with regard to registered post letter not for telephone bill. The learned counsel for the petitioner-accused has further contended that there is alteration in the receipt Ex.P4. But I am not convinced with this argument. The figure '97' has darker ink than other figures. But it does not appear to be alteration, rather it is natural one. Now coming to the another contention of learned counsel for the petitioner qua validity of notice Ex.P3. The complainant has demanded cheque amount alongwith Rs.500/- as expenses through this notice. According to the learned counsel for the petitioner, this demand is for bigger amount, therefore, the notice is defective. While not agreeing to the aforesaid contention, it would be suffice to place reliance upon the judgment of Hon'ble Apex Court delivered in case Suman Sethi vs. Ajay K.Churiwal 2000 (1) RCR (Crl.) 780 wherein it has been held that a demand notice cannot be said to be invalid if it contains a break up claim i.e. cheque amount, interest, damages etc. are separately specified. Hon'ble Apex Court in para No.7 of the judgment observed as under:- “It is well settled principle of law that the notice has to be read as a whole. In the notice, demand has to be made for the “said amount” i.e. cheque amount. If no such demand is made, the notice no doubt would fall short of its legal requirement. Where in addition to the “said amount” there is also a claim by Criminal Revision No.1181 of 2003 9 way of interest, cost etc. Whether the notice is bad would depend on the language of the notice. If in a notice while giving up break up of the claim the cheque amount, interest, damages etc. are separately specified, other such claims for interest, cost etc. would be superfluous and these additional claims would be severable and will not invalidate the notice. If, however, in the notice, an omnibus demand is made without specifying what was due under the dishonoured cheque, notice might well fail to meet the legal requirement and may be regarded as bad.” In notice Ex.P3, the complainant has demanded the cheque amount alongwith interest and Rs.500/- as expenses of the notice. All these items have been demanded separately. In view of the ratio laid down by Hon'ble Apex Court in Suman Seth's case (supra), the notice is fully valid. It may further be observed that both the Courts below have rightly taken the consistent view that all the ingredients for commission of the crime stand established and I, while sitting at this revisional stage, hasten to interfere with the same. The accused had least respect for the word given by him and dishonestly allowed the cheque dishonoured. Since the accused has not returned such huge amount and the complainant has suffered more than what the accused has suffered, therefore, he does not deserve any leniency on the quantum of sentence. Resultantly, finding no merit in the petition, the same is dismissed. (A.N.Jindal) Judge 15.02.2010 mamta-II