Criminal Revision No. 878 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 878 of 2007 Date of Decision: 21.01.2010 Manoj Kumar alias Lala son of Harbhajan Lal r/o village Manan, P.O. Naugajja, Disst. Jalandhar. ...Petitioner Versus 1. Narinder Kumar son of Sardari Lal r/o H. No. 176, Mohalla Maikhai, Preet Nagar, Sodal Road, Jalandhar. 2. The State of Punjab. ...Respondents CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mohd. Yousaf, Advocate, for the petitioner. Mr. R.S. Bajaj, Advocate, for respondent No. 1. Mr. T.S. Salana, Deputy Advocate General, Punjab, for respondent No. 2 – State. * * * * SHAM SUNDER, J. * * * * This revision-petition, is directed against the judgment of conviction and the order of sentence, dated 06.12.06, rendered by the Court of Judicial Magistrate 1st Class, Jalandhar, vide which, he Criminal Revision No. 878 of 2007 2 convicted the accused, for the offence, punishable under Section 138 of the Negotiable Instruments Act, 1881 (amended upto date) (hereinafter to be called as the 'Act' only), and sentenced him to undergo rigorous imprisonment, for a period of one year, and to pay a fine of Rs. 2,000/-, and, in default thereof, to further undergo rigorous imprisonment, for a period of one month, and, the judgement, dated 10.05.07, rendered by the Court of Additional Sessions Judge (Adhoc), Jalandhar, vide which, he affirmed the judgement of the trial Court. 2. The facts, in brief, are that, Narinder Kumar, complainant/respondent No. 1, wanted to settle in Italy, and one day he came into contact with Manoj Kumar alias Lala, accused/petitioner, who demanded a sum of Rs. 3,60,000/-, for sending him there. Consequently, the complainant, paid a sum of Rs. 1,60,000/-, to the accused, and the remaining amount was agreed to be paid, after he was sent to Italy. But, instead of sending the complainant, to Italy, he was sent to Thailand, on the pretext that, in the first instance, he would have to go there, wherefrom, Visa for Italy, would be arranged for him. After reaching Thailand, the complainant, was intimidated by the agents of the accused, that his Visa for Italy, could not be arranged, and until he paid a sum of Rs. 2 lacs, to them, he would not be able to get back to India, as his passport and air tickets, were in their possession. Thereafter, the complainant, contacted his family members, who paid a sum of Rs. 2 lacs, to the accused, whereafter, he was given back his passport and air tickets, by his agents, in Thailand. After reaching India, the complainant, contacted the accused, who admitted his fault, Criminal Revision No. 878 of 2007 3 and agreed to pay the entire amount to him provided that the matter, was not reported, to the Police. Consequently, two cheques dated 26.11.04, and 27.11.04, amounting to Rs. 1,40,000/- and Rs. 50,000/-, respectively, drawn on Indian Overseas Bank, Doaba College Jalandhar, were issued, in favour of the complainant. However, on presentation, the same were dishonoured, vide memo dated 27.11.04. Thereafter, a legal notice, dated 15.12.04, was served upon the accused, through registered post as well as under certificate of posting, calling upon him, to make the payment of the amount, in question, but to no avail. Ultimately, a complaint, under Section 138 of the Act, was filed, by the complainant. 3. After recording the preliminary evidence of the witnesses, the trial Court, summoned the accused, for the offence, punishable under Section 138 of the Act. 4. Notice under Section 138 of the Act, was served upon the accused, which was read over and explained to him, to which, he pleaded not guilty and claimed judicial trial. 5. The complainant, himself stepped into the witness box, as CW1, and proved documents C1 to C10. Thereafter, he closed his evidence. 6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him. He pleaded false implication. It was stated by him that he never worked as Travel Agent. It was further stated by him that he did not obtain any amount or Criminal Revision No. 878 of 2007 4 passport from the complainant. It was further stated by him that the complainant and his relatives, were threatening him, to issue cheques, in their favour. It was further stated by him that he moved a complaint, to the Police, but, the Police, did not take any action. However, he did not lead any evidence, in defence, and closed the same. 7. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 8. Feeling aggrieved, an appeal, was preferred by the accused- appellant, which was dismissed by the Court of Additional Sessions Judge (Adhoc), Jalandhar, vide judgement dated 10.05.07. 9. Still feeling dissatisfied, the instant revision-petition, has been filed by the accused-petitioner. 10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the accused-petitioner, did not challenge the conviction, recorded by the trial Court. Even otherwise, he could not successfully challenge the same. The trial Court, on due scrutiny of the evidence of Narinder Kumar (CW1), complainant, was right in coming to the conclusion, that the same was cogent, convincing, reliable and trustworthy and sufficient to hold the accused guilty. This witness was thoroughly cross-examined, but nothing of consequence, was got elicited from his mouth, which may go to discredit his evidence. The trial Court, was, thus, right in recording conviction. The judgment of conviction, rendered by the trial Court, thus, deserves to Criminal Revision No. 878 of 2007 5 be upheld. 12. The Counsel for the accused-petitioner, however, submitted that the sentence awarded to the accused-petitioner, be reduced suitably, as he has been facing the protracted criminal proceedings since 2005 i.e. for the last more than four years. He further submitted that during all these years, the accused-petitioner, suffered a lot of mental agony and physical pain. The submission of the Counsel for the accused-petitioner, in this regard, appears to be correct. The sword of damocle's, has been hanging over the head of the accused-petitioner, for the last more than four years. In my considered opinion, he must have learnt the lesson, by now. In my considered opinion, the ends of justice, shall be met, in case, the substantive sentence is reduced to rigorous imprisonment for 07 months, from 01 year, awarded by the trial Court. The submission of the Counsel for the accused-petitioner, to this extent, is accepted. 13. For the reasons recorded above, the revision-petition, is partly accepted. The judgement of conviction, rendered by the Courts below, is upheld. The order of substantive sentence is modified, in the manner, that the accused-petitioner, shall undergo rigorous imprisonment for 07 months, instead of 01 year, awarded by the Courts below. However, the sentence of fine, and in default of payment of fine, shall remain unaltered. 14. The Chief Judicial Magistrate, is directed to comply with the judgement, in accordance with the provisions of law, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Revision No. 878 of 2007 6 Criminal Procedure, promptly, on receipt of a copy of the judgement. 21.01.2010 (SHAM SUNDER) AMODH JUDGE