Crl.Revision No.2274 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No.2274 of 2009 Date of decision:02.09.2009 Shadi Lal ....Petitioner versus Gurdial Singh Chitti ....Respondent Coram:- HON'BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Jasbir Rattan, Advocate for the petitioner. L. N. MITTAL, J (ORAL) Shadi Lal has filed this revision petition assailing his conviction and sentence by both the Courts below. Respondent Gurdial Singh Chitti instituted criminal complaint (Annexure P-1) under Section 138 of the Negotiable Instruments Act, 1888 (in short, the Act) read with Section 420 IPC alleging that the petitioner borrowed Rs.3,50,000/- from the complainant on 20.12.2000 and issued cheque dated 01.03.2001 for the said amount in favour of complainant. However, the said cheque on presentation on 15.06.2001 was returned with the remarks that the account closed and stands transferred to some other account and civil suit filed. When the complainant brought this fact to the notice of the petitioner, the petitioner issued another cheque dated 20.12.2001 for Rs.3,50,000/- drawn on another bank. The said cheque was presented on 18.02.2002 by the complainant, but was dishonoured vide memo dated 20.02.2002 on account of insufficient funds. The petitioner was informed, but the petitioner asked the Crl.Revision No.2274 of 2009 -2- complainant to present the cheque again in mid March, 2002. Complainant presented the cheque again on 14.03.2002, but it was again returned unencashed on 27.03.2002 on account of insufficient funds. Thereupon the claimant served demand notice dated 03.04.2002 by Registered post as well as under postal certificate. The petitioner received the said notice on 05.04.2002, but did not pay the cheque amount. After preliminary evidence, the petitioner was summoned to face trial under Section 138 of the Act only and not under Section 420 IPC. Learned Judicial Magistrate vide judgment and order dated 17.07.2008 convicted the petitioner under Section 138 of the Act and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.5000/- and in default thereof, to undergo further rigorous imprisonment for four months. Appeal preferred by the petitioner against his conviction and sentence has been dismissed by learned Additional Sessions Judge, Jalandhar vide judgment dated 08.08.2009. Feeling still aggrieved, the petitioner has filed the instant revision petition. I have heard learned counsel for the petitioner and perused the case file. Learned counsel for the petitioner contended that the complainant was employed in Bank and the petitioner had given blank signed cheque in good faith to the complainant who misused the same. The contention cannot be accepted because there is no material on record whatsoever to substantiate the same. No evidence was led by the petitioner in support of the aforesaid plea. On the other hand, there is no reason why the petitioner Crl.Revision No.2274 of 2009 -3- would give a blank signed cheque to the respondent merely because the respondent was bank official. Learned counsel for the petitioner also contended that the complainant had no capacity to pay Rs.3,50,000/-. This contention is also devoid of merit because the complainant has stated that he is agriculturist and previously he was employed in State Bank of India. Consequently, it cannot be said that the complainant had no capacity to pay the amount of Rs.3,50,000/- to the petitioner. Learned counsel for the petitioner cited judgment of Karnataka High Court in the case of Shiva Murthy versus Amruthraj, 2009(2) Criminal Court Cases 871. In that case, it was found on the basis of evidence that the complainant was not in a financial position to lend the huge amount of Rs.75000/- and that too without interest. Reliance has also been placed on a judgment of Hon’ble Supreme Court in the case of M/s Kumar Exports versus M/s Sharma Carpets, 2009(1) Criminal Court Cases 940. It was held therein that presumption under Section 138 of the Act that cheque was issued for consideration can be rebutted by evidence including circumstantial evidence. In the instant case, however, there is no evidence direct or circumstantial to rebut the presumption that the cheque was issued by the petitioner without consideration. In fact the petitioner in his examination under Section 313 of the Code of Criminal Procedure (in short, Cr.P.C) while denying the incriminating circumstances, simply alleged that the complainant has misused the cheque given to him in good faith. There is no plea as to why the petitioner had given the cheque at all to the complainant. No evidence has either been led by the petitioner in support of this plea. Learned counsel for the Crl.Revision No.2274 of 2009 -4- petitioner also cited the judgment of Hon’ble Supreme Court in the case of Sudhir Kumar Bhalla versus Jagdish Chand and others, 2009(2) Criminal Court Cases 199. It was held therein that cheque issued as security would attract Section 138 of the Act only if the cheque was in discharge of liability or debt and not merely on account of being security cheque. In the instant case, however, it is not even the plea of the petitioner himself that the cheque was issued as security to the complainant. Learned counsel for the petitioner next argued that dishonour memos (Annexures P-3 and P-4) sent by the Bank do not mention the cheque number. However, the original cheque was returned along with memos and the complainant has stated so on oath and, therefore, these memos are linked with the cheque in question. On the other hand, when this evidence was put to the petitioner in his examination under Section 313 Cr.P.C, he stated ‘I don’t know’. Thus he did not even plead that these memos did not pertain to the cheque in question. Learned counsel for the petitioner relying on a judgment of the Supreme Court in the case of M/s Harman Electronics (P) Ltd. And another versus M/s national Panasonic India Ltd., 2009(1) Criminal Court Cases 581 contended that demand notice must be proved to have been received by the accused. There is no quarrel with the legal position. In the instant case, however, demand notice was sent through Registered Post as well as under postal certificate. The complainant produced postal receipt depicting that the notice was sent by registered post. The petitioner has not led any evidence whatsoever to depict that the notice was not received by him. When Crl.Revision No.2274 of 2009 -5- notice is sent by registered post, the presumption is that the same had been delivered to the addressee. Said presumption has not beeb rebutted in any manner in the instant case. Lastly, learned counsel for the petitioner contended that cheque dated 01.03.2001 has not been produced by the complainant. Learned counsel for the petitioner cited judgment of Hon'ble Supreme Court in the case of MCD versus State of Delhi and another, 2005(3) Criminal Court Cases 01 wherein it was held that a litigant is bound to produce all documents relevant to the litigation. This judgment does not support the aforesaid contention of learned counsel for the petitioner because cheque dated 01.03.2001 was not relevant to the litigation inasmuch as the complaint does not pertain to the said cheque, but pertains to cheque dated 20.12.2001. In addition to the aforesaid, there is concurrent finding of guilt of the petitioner by both the Courts below. The said finding is based on appreciation of evidence and is not shown to be perverse or illegal so as to warrant interference in exercise of revisional jurisdiction. From the evidence on record, it cannot be said that the conclusion of the Courts below is not a conclusion which a reasonable person would have arrived at on the basis of the said evidence. Evidence is not to be appreicated again for the third time in revision petition. The finding of conviction of the petitioner recorded by the both the Courts below is a reasonable finding, founded on reasons based on the evidence led by the complainant which stood rebutted. Therefore, there is no illegality, perversity or grave error in the said finding so as to warrant interference in exercise of revisional Crl.Revision No.2274 of 2009 -6- jurisdiction. The finding of the conviction of the petitioner is accordingly upheld. The sentence imposed on the petitioner also cannot be said to be excessive, keeping in view the cheque amount. In fact no compensation has been awarded to the complainant. Consequently, the sentence also does not warrant reduction. In view of the aforesaid, I find no merit in the instant revision petition which is accordingly dismissed in limine. ( L. N. MITTAL ) JUDGE 02.09.2009. A.Kaundal