Crl.Rev. No.379 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Revision No.379 of 2010 (O&M) Date of Decision:February 08, 2010 Joginder Pal ...........Petitioner Versus Susheel Nayyar and another ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Sunil Doda, Advocate for the petitioner. ** Sabina, J. Petitioner-Joginder Pal was convicted for an offence under Section 138 of the Negotiable Instruments Act, 1881 (`the Act' for short) by the Judicial Magistrate Ist Class, Pathankot in a complaint filed by complainant-Susheel Nayyar-respondent No.1 vide judgment dated 2.5.2007. Vide order of even date, accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5000/- under Section 138 of the Act. Aggrieved by the same, petitioner preferred an appeal and the same was dismissed by the Additional Sessions Judge, Fast Track Court(Adhoc) Gurdaspur vide judgment dated 20.1.2010. Hence, the present revision petition has been filed by the petitioner. Brief facts of the case, as noticed by the appellate Court in Crl.Rev. No.379 of 2010 (O&M) 2 paras 2 to 4 of its judgment, are reproduced here in below:- “The brief facts of the case are that complainant Susheel Nayyar is running a Karyana shop under the name and style of M/s Nayyar Karyana Store at Sain Garh, Pathankot. The accused had to pay Rs.45,000/- to the complainant and in order to discharge his liability to pay R.45,000/- accused Joginder Pal Saini issued a cheque No. 158829 amounting to Rs.45,000/- drawn on Pathankot Hindu Urban Company Operative Bank Ltd., Model Town Branch, Pathankot from his account No.6035 in favour of the complainant and assured him that the cheque would be honoured as and when presented for encashment. On the assurance of the accused, the cheque was presented in the bank by the complainant through his banker Union Bank of India Dalhousie Road, Pathankot who through its clearing house sent the said cheque to the banker of the accused but the cheque was dishonoured by the banker of the accused with their memo dated 6.6.2001 with remrks “insufficient funds” meaning thereby that the accused had no sufficient balance in his account. The said cheque alongwith memo was received back by the complainant from his banker Union Bank of India, Pathankot. The complainant also served a legal notice dated 12.6.2001 to the accused through registered AD as well as through UPC which was received by the accused but the accused neither paid the cheque amount nor replied to the notice. 3.After recording the preliminary evidence of the complainant, the accused was summoned having committed offence punishable Crl.Rev. No.379 of 2010 (O&M) 3 under Section 138 of the Negotiable Instruments Act. 4.On appearance of the accused in the Court, and after hearing the ld. Counsel for the complainant and the learned counsel for the accused, notice under Section 138 read with Section 141 of the Negotiable Instruments Act was served upon the accused to which accused pleaded not guilty and claimed trial.” Learned counsel for the petitioner has submitted that the complainant had failed to establish that the cheque in question had been issued for a liability. Hence, the petitioner was liable to be acquitted of the charge framed against him. After hearing the learned counsel for the petitioner, I am of the opinion that the present petition deserves to be dismissed. In the present case, cheque in dispute is dated 3.5.2001 for a sum of Rs.45000/-. When the said cheque was presented for encashment of the complainant, the same was returned by the Bank with remarks "insufficient" funds. The petitioner had taken the plea that the cheque in question had been issued as a security. However, the petitioner had failed to establish his said plea. The parties are known to each other. It has been noticed by the learned trial Court in the judgment that the petitioner had admitted in his cross-examination that he had been purchasing karyana goods from the complainant. The plea taken by the petitioner that a loan had been taken by him was also not substantiated by leading cogent and convincing evidence in this regard. It has been noticed by the trial Court in the judgment that DW1 had failed to disclose the date and month when the loan was advanced. There was no documentary evidence regarding loan transaction between the accused and Shiv Kishore. Shiv Kishore had also Crl.Rev. No.379 of 2010 (O&M) 4 not been examined by the petitioner to substantiate his plea to the effect that he had taken loan from Shiv Kishore and, thereafter, the cheque in question had been misutilized. Both the Courts below, after appreciating the evidence on record, have found that the petitioner was guilty of the charge framed against him. No ground for interference is made out. Dismissed. (Sabina) Judge February 08, 2010 arya