Crl.Rev.No.1368 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 2.11.2010 Crl.Rev.No.1368 of 2008 (O&M) TarlochanSingh ......Petitioner Versus Wassan Singh and another .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Balram Singh, Advocate, for the petitioner. Mr.Sandeep Arora, Advocate, for respondent No.1. Mr.Amandeep Singh, AAG, Punjab. **** SABINA, J. Petitioner was convicted for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short- “ the Act”) vide judgment dated 15.9.2006 passed by the Judicial Magistrate, Ist Class, Jalandhar. Vide order of the even date, he was sentenced to undergo simple imprisonment for a period of 1 ½ year with a fine of ` 2,000/- under Section 138 of the Act. Aggrieved by the same, he filed an appeal, which was dismissed vide judgment dated Crl.Rev.No.1368 of 2008 (O&M) 2 15.7.2008 passed by the Additional Sessions Judge, (Adhoc), Fast Track Court, Jalandhar. Hence, the revision petition The case of the prosecution, as noticed by the Appellate Court in para 3 of the impugned judgment, reads as under:- “Briefly stating, the facts of the present case are that accused issued a cheque bearing no. 562235 dated 25.06.1999 drawn on Punjab and Sind Bank, Barring, Jalandhar for amount of Rupees five lacs in favour of complainant in discharge of his liability. At the time of issuance of cheque, accused assured the complainant that the cheque will be encashed when presented in the court. Accordingly, the complainant present the cheque for realization though his bank Punjab and Sind Bank, Lalayalpur Khalsa College, Branch, Jalandhar, but the same was dishonoured and it was returned to the complainant by his bank returning memo dated 01.07.1999 bearing remarks Funds Insufficient. On the receipt of dishonour cheque from his bank, the complainant approached the accused for payment of the dishonoured cheque. But he did not give any satisfactory reply. So the complaint was compel to serve a legal notice dated 10.7.1999 under section 138 of Negotiable Instrument Act and under Section Crl.Rev.No.1368 of 2008 (O&M) 3 406/420 of IPC, asking the accused to make the payment of the dishonoured cheque. The legal notice sent to the accused, was received back undelivered. However, the notice sent through UPC was delivered to him. Reply was filed to that notice vide reply dated 5.8.1999, but he did not make the payment. The accused intentionally issued the cheque having the knowledge that he is not having sufficient funds. So he has committed the offence punishable under section 138, 141 142 of Negotiable Instrument Act. He further alleged that the amount due to the accused is trust money in hands of the accused. So he has committed offence punishable under Section 406 IPC.” After hearing the learned counsel for the parties, I am of the opinion that the present petition deserves dismissal. Complainant Wassan Singh had filed a complaint qua dishonour of cheque in question dated 25.6.1999. The cheque in question was issued for a sum of ` 5,00,000/- in favour of the complainant by the petitioner but when the said cheque was presented for encashment by the complainant the same was returned back unpaid with the report “ Funds insufficient”. Thereafter, the complainant served a legal notice on the petitioner to make the payment qua the cheque amount but despite receipt of the Crl.Rev.No.1368 of 2008 (O&M) 4 notice, the cheque amount was not paid by the petitioner to the complainant. Hence, left with no other alternative, the complainant filed the complaint. In order to prove his case, the complainant appeared in the witness box as CW-2. The complainant also examined CW-1 Jaswant Singh, official of the bank and CW-3 Gursharan Pal Singh, Manager of the bank to substantiate his plea that the cheque in question had been returned back unpaid with the report “funds insufficient”. The petitioner himself appeared in the witness box as DW-2 and deposed that he had financial dealing with M/s Nabula Financial Services Ltd. J.S.Complex, Shahshtri Market, Jalandhar through Sukhbinder Singh Kohar. The said person had been introduced to him by Balbir Singh Sangha, Advocate. He had executed a power of attorney in favour of Sukhbinder Singh Kohar because of the obligations of the loan advanced to him by M/s Nabula Financial Services Ltd. The said power of attorney was witnessed by Balbir Singh Sangha, Advocate. He had met Sukhbinder Singh Kohar along with DW-1 Gurdev Singh in April 1999 and had handed over two cheques for a sum of ` 5,00,000/- each to Sukhbinder Singh Kohar. Columns as to in whose favour the cheque were to be issued were left blank. Later on he came to know that M/s Nabula Financial Services Ltd had defrauded the depositors. Thereafter, he cancelled the power of attorney on 11.5.1999 vide Ex.D-1 and also stopped payment qua both the Crl.Rev.No.1368 of 2008 (O&M) 5 cheques. Thus, from the testimony of the petitioner, it is evident that the cheque in question was duly signed by the petitioner and he had also filled in the amount and date. A presumption arises that the cheque in question had been issued by the petitioner qua an outstanding liability. The petitioner had failed to rebut the said presumption. The petitioner had filed a complaint against the complainant in the year 2001, whereas, the present complaint had been filed by the complainant in the year 1999. The petitioner had surrendered in the present case before the trial Court in November 2000. In these circumstances, the courts below had rightly held that the complaint filed by the petitioner could be treated as a counter blast to the present complaint. Both the Courts below have thus rightly ordered the conviction of the petitioner under Section 138 of the Act as the complainant had been successful in proving his case. No ground for interference by this Court is made out. Accordingly, this petition is dismissed. (SABINA) JUDGE November 02, 2010 anita