Crl. Revision No. 242 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 242 of 2009 (O&M) Date of Decision : November 15, 2010 V.K. Bansal ........Petitioner Versus State of Haryana and another ........Respondents ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present : Mr. Vinod Gupta, Advocate, for the petitioner. Mr. Satyavir Singh Yadav, DAG, Haryana. Mr. Puneet Gupta, Advocate, for respondent No.2. SABINA, J. The petitioner was tried for an offence under Section 138 of the Negotiable Instrument Act, 1881 (in short 'the Act'). The learned trial Court vide judgment dated 6.8.2007 convicted the petitioner for an offence under Sections 138 of the Act. Vide order dated 7.8.2007 petitioner was sentenced to undergo simple imprisonment for one year under Section 138 of the Act and to pay a compensation to the tune of Rs.10,00,000/- (Ten lacs), to the complainant Haryana Financial Corporation. Aggrieved by the same, petitioner preferred an appeal and the same was dismissed by learned Sessions Judge, Hisar vide judgment dated 11.10.2008. Hence, the present revision petition. Crl. Revision No. 242 of 2009 (O&M) 2 The prosecution story in brief as noticed by the Appellate Court in para 2 of the impugned judgment reads as under :- “Brief facts of the present case are that the accused availed a loan from the complainant and towards its repayment issued a cheque No.09315 dated 15.7.1997 drawn on State Bank of India, Hisar for Rs.5,00,000/- (Five Lacs) in favour of the complainant. It is alleged that the complaint presented the said cheque for collection but it was received uncashed with a memo issued by the bank saying that the cheque is returned on account of “Not Arranged for”. The said information from the bank was received by the complainant on 21.7.1997. It is further alleged that a notice dated 30.7.97 was sent to the accused through registered post under the postal receipt no.4264-65 requiring him to pay the amount of Rs.5,00,000/- (Five lacs) within 15 days from the receipt of notice by him. However, the registered notice was not received undelivered by the complainant so its deliver to the accused is presumed. It is further alleged that the accused has failed to make the payment within the stipulated period of 15 days, he has made himself liable to be prosecuted under Section 138 of Negotiable Instrument Act (hereinafter, referred to the Act). Hence, the complaint was filed.” After hearing the learned counsel for the parties, I am of the opinion that no ground for interference is made out. Learned trial Court in paras 17 and 19 of the judgment has held as under :- “17. As far as the argument of learned defence counsel that the Crl. Revision No. 242 of 2009 (O&M) 3 complainant has not been filed by the duly authorised person is concerned, it is pertinent to mention here that Resolution Ex.P7 dated 28.8.2000 has been produced on the case file and in the said resolutions, the power to institute the proceedings under section 138 of Negotiable Instrument Act, have been delegated to managers. Even the Board has accorded its ex-post fact approval in the cases where such legal proceedings were already initiated. Even if for the sake of arguments, it be taken that complainant Shri Atma Ram, has filed the present complaint without any resolution in his favour in this regard, the said defect stands rectified by the ex-post facto sanction granted by the Board of directors vide resolution Ex.P7 in respect of institution of complaint under Section 138 of Negotiable Instrument Act. As per the resolution Ex.P7, the managers have been delegated powers to proceed further with the present complaint. Thus this objection of learned defence counsel is of no consequence. Even otherwise in the authority titled M/s Bicycle Manufacturing Corporation (supra), it has been specifically observed that when Branch Manager is looking after the affairs of the company, then he is competent to file the complaint and no specific authorisation is required for filing the complaint by the Branch Manager. Since cheque in question has been issued and given to the Branch Manager for encashment and he presented the cheques for encashment on behalf of the company. Same observations have been made in authority S.P. Subramaniam (supra). In view of the law laid down tin the above said authorities, the objection of learned defence counsel in respect of dismissing the complaint in view of the fact that Crl. Revision No. 242 of 2009 (O&M) 4 complaint has been filed by the person who has not been authorised by the competent authorities of Haryana Financial Corporation by way of passing resolution in his favour is not tenable, therefore, same is ignored. 19. In view of above discussion, it stands established that the accused has drawn the cheque Ex.P8 in the account maintained by him with the State Bank of India for payment of Rs.5,00,000/- to complainant Haryana Financial Corporation out of that account for the discharge of debt and said cheque Ex.P8 was returned by his banker unpaid with the remarks “Not Arranged For”. It further stands established that despite being given notice Ex.P9, in this regard, the accused has failed to make the payment of the cheque amount within 15 days. In this way, all the essential ingredients of the offence punishable under Section 138 of Negotiable Instrument Act, have been attracted. Accordingly, the accused is held guilty for the commission of offence punishable under Section 138 of Negotiable Instrument Act. Let he be heard on quantum of sentence on 7.8.07.” Learned Appellate Court in paras 12 and 14 has held as under :- 12. I have considered the rival contentions of the parties very carefully and I find that the cheque was issued by the accused as a measure of concession given by the Corporation so as to make the payment of loan in installment. In such circumstances, thus, it does not lie in the mouth of the appellant-accused that the statements of the account have not been produced. He did not even file any reply to the notice given to him and the argument Crl. Revision No. 242 of 2009 (O&M) 5 that in action on the part of the accused in that behalf, cannot be taken to be an abandonment of the right as held in Ranjit Kaur and others vs. Shadi Singh and others (2000-1) PLR 695 is of no force. Thus, this argument of the counsel for the accused stands repelled. 14. I have perused these authorities very carefully and I find that none of these authorities are applicable on the facts of the present case. The perusal of the cheque, as well as accompanying slip by the bank vide which the cheque was sent after being dishonored, clearly mentioned that the cheque wsa received from the Branch Manager of Haryana Financial Corporation, Hisar. After dishonor, it was returned to Branch Manager of HFC Hisar....” The reasons given by the trial Court while ordering the conviction of the petitioner under Section 138 of the Act are sound reasons and the reasons given by the Appellate Court while dismissing the appeal filed by the petitioner are also sound reasons. Petitioner had taken loan from respondent No.2 and had issued cheque in question qua repayment of the loan. However, when the cheque was presented for encashment, the same was returned back by the Bank with the report “Non Arranged for”. Thereafter, respondent No.2 sent a registered notice to the petitioner qua payment of the cheque amount, but despite that payment of the cheque amount was not made to respondent No.2. Hence, left with no other alternative respondent No.2 filed a complainant against the petitioner. Manager of the Corporation appeared in the witness box in support of the case of the Corporation. Since the complainant had been successful in proving its case, the trial Court rightly ordered the conviction Crl. Revision No. 242 of 2009 (O&M) 6 of the petitioner under Section 138 of the Act. Petitioner had not led any evidence in his defence. No ground for interference is made out. Dismissed. (SABINA) November 15, 2010 JUDGE Anand