IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 1336-SBA of 2006 Date of decision: 11th March, 2010 M/s Singh Finance … Appellant Versus Davinder Singh … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. H.P.S. Ghumman, Advocate for the appellant. Mr. G.S. Jaswal, Advocate for the respondent. KANWALJIT SINGH AHLUWALIA, J. M/s Singh Finance (appellant) through its partner Pritpal Singh, had instituted a complaint in the Court of Judicial Magistrate (1st Class), Jalandhar against Davinder Singh under Section 138 of the Negotiable Instruments Act, 1881. It was stated therein, that the accused Davinder Singh on 29th May, 1999 had taken a loan of Rs.10,000/- from the complainant. The accused, in order to discharge his liability towards the loan, had issued a cheque bearing No.924760 dated 12.04.2001 for Rs.10,000/- drawn on Punjab and Sind Bank, New Sabzi Mandi, Jalandhar. The above said cheque was deposited by the complainant in Punjab and Sind Bank, New Grain Market, Jalandhar. The cheque was returned by the Banker on the ground that funds were insufficient. The cheque was returned vide memo dated 16th April, 2001. The complainant had sent a statutory notice before filing the complaint. Learned trial Court after completing trial and finding the complainant having failed to prove Criminal Appeal No.1336-SBA of 2006 any offence, as agitated in the complaint against the respondent, acquitted the accused respondent of the accusation notice. Aggrieved against the judgment of acquittal dated 7th May, 2005, present appeal has been preferred by the complainant. The complainant examined Jasvir Singh, an official of Punjab and Sind Bank as CW-1. This witness proved the Account Opening Form of Davinder Singh accused and a memo Ex.C-4, which was issued by the Bank. According to this memo, the cheque was dishonoured on the ground that there were insufficient funds in the account of Davinder Singh accused. Gurcharan Singh, an official of Punjab and Sind Bank, New Grain Market, Jalandhar, appeared as CW-2 and stated that the complainant had an account in the branch of their Bank. This witness further stated that on deposit of the cheque, the same was presented but was returned on the ground that the funds were insufficient. Pritpal Singh, partner of the complainant – firm, tendered his evidence by way of affidavit dated 24th April, 2004. He was examined as CW-3. In cross examination, Pritpal Singh CW-3 stated that on 28th May, 1999, a loan of Rs.10,000/- was advanced in cash for a period of 1 ½ year and the period of loan had elapsed on or before November, 2000. This witness further admitted that in the complaint as well as in the legal notice Ex.C-6, there is no mention of written agreement, loan on interest or money lender licence. It was further stated that the accused was not known to this witness prior to giving of the loan amount. This witness further admitted that he had issued certain receipts to the accused regarding re-payment of the loan. The complainant was shown the receipts in the Court. The receipts so issued by the complainant were exhibited as Ex.D1 to D5. Receipt Ex.D6 was issued by the grandmother of the complainant. This 2 Criminal Appeal No.1336-SBA of 2006 witness further admitted that the accused had issued a blank cheque. He further admitted that before presentation of the cheque, no written consent was obtained from the accused Davinder Singh. Thereafter, complainant closed its evidence and statement of the accused Davinder Singh was recorded under Section 313 Cr.P.C. The accused Davinder Singh gave his version as under: “I am innocent. There is no liability towards the complainant. The entire loan amount was repaid in cash. The complainant taking the advantage of non-issuance of some receipts for the cash received and the cheque Ex.C3 which was taken as blank signed cheque towards the loan amount of Rs.10000/-, as security. The body of the cheque was filled by the complainant himself without the consent of the accused which render the same as void. The said cheque was not returned to the accused despite the entire payment and repeated request made by the accused. I am driver and sole bread winner of the family.” Learned trial Court had acquitted the accused respondent Davinder Singh. In the present appeal, it is urged that the acquittal of the accused respondent cannot be sustained in the eyes of law. The trial Court held that the amount of loan had been re-paid and the receipts to this effect were issued. The trial Court further held that the cheque in question was deposited as security. Further the trial Court came to the conclusion that the accused had handed over a blank cheque to the complainant appellant. The trial Court concluded as under: “14. … … … … ‘Bill of Exchange’ is defined by Section 5 of the Act ‘an instrument in writing containing an 3 Criminal Appeal No.1336-SBA of 2006 un-conditional order signed by the maker directing a certain person to pay a certain sum or money only to or to the order of a certain person or to the bearer of the instrument. Implying thereby that for a cheque which is essential a Bill of exchange to be a valid cheque. It is necessary that the same must be (i) un-conditional, (ii) it should be signed by the maker, (iii) it should be directing a certain person to pay, (iv) a certain sum or money, (v) to a certain person or bearer of the instrument, i.e. to say that the person to whom payment is to be made, the sum or money to be paid must be specified in the cheque in order to make it valid cheque. In the instant case the amount and the payee were not named by the accused and he issued the cheque in blank condition bearing only his signature. The name of the payee, amount (in words and figure) and date were scribed by the complainant. In these circumstances, I am of the considered view that applying the ratio of the above referred authority, the cheque in question cannot be said to be a valid cheque and as such, liability under Section 138 of the NI Act cannot be enforced on the basis of the such cheque. In the circumstances, I am of the considered view that the defence version is more probable. The legal defect pointed out by the defence in the prosecution version has damaged the prosecution case irreparably. I, therefore, hold that the offence under Section 138 of the NI Act is not made out against the accused. Accordingly, the accused is hereby acquitted of the notice served upon him. File be consigned to the record room.” This Court is of the opinion that the view formulated by the trial Court is not perverse from the facts and circumstances of the case as well as the evidence brought on record. The view formulated by the trial Court is the one, which is possible. The complainant had advanced a loan of Rs.10,000/-. He had issued receipts Ex.D1 to D5. Receipt Ex.D6 was issued by grandmother of the complainant. Still the cheque in 4 Criminal Appeal No.1336-SBA of 2006 question was presented for an amount of Rs.10,000/-. It was admitted that a blank cheque was issued by the accused. Therefore, in these circumstances, this Court is not inclined to disturb the findings of acquittal of the accused respondent recorded by the trial Court. Hence, there is no merit in the present appeal and the same is hereby dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE March 11, 2010 rps 5