CRR No.85 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.85 of 2003 Date of decision : 15.11.2010 Ripudaman Kapil and another ...Petitioners Versus State of Punjab and another …Respondents CORAM : HON’BLE MR. JUSTICE JITENDRA CHAUHAN **** Present : Mr. Mandeep Kaushik, Advocate as Amicus Curiae, for the petitioners. Mr. J S Bhullar, AAG, Punjab. **** JITENDRA CHAUHAN, J. (ORAL) 1. The present revision petition is directed against the judgment dated 13.11.2002 (hereinafter as ‘impugned judgment’), delivered by the learned Additional Sessions Judge, Jalandhar, (hereinafter as ‘Appellate Court’), upholding the judgment/order dated 01.08.2002 passed by the learned Judicial Magistrate, 1st Class, Jalandhar (hereinafter as ‘trial Court) whereby the accused-petitioner has been convicted for commission of offence punishable under CRR No.85 of 2003 -2- Section 138 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default thereof, to further undergo rigorous imprisonment for a period of three months. 2. The prosecution story, in brief, as emanating from the judgment of learned Appellate Court is that M/s Relan Trade Linkers filed a criminal complaint under Section 138, 141 and 142 of the Act read with Section 406 and 420 IPC, before the learned trial Court with the allegations that the petitioner-accused/Company has purchased various goods on credit from the complainant. The credit account of the petitioner-accused existed in the books of account maintained by the complainant and there was a legal debt of Rs.1,23,779/- against the accused-petitioner. During the course of the business, the petitioner issued a cheque bearing No.648982 dated 24.08.1998 for Rs.70,000/- drawn on State Bank of Patiala, Hamirpur Branch, in favour of the complainant towards part payment of the due amount. The said cheque was presented by the complainant for encashment with its Banker on 25.8.1998. On 4.9.1998, the cheque in question was dishonoured by the Banker with remarks ‘no sufficient funds’. On 17.9.1998, a legal notice was served by the complainant upon the accused-petitioner which was duly received by the petitioner but even then no payment was made. CRR No.85 of 2003 -3- 3. The learned trial Court, on the basis of preliminary evidence, summoned the accused to face trial under Section 138 of the Act to which the accused pleaded his innocence and claimed trial. 4. In order to substantiate its case, the complainant produced PW1-Munish Relan, Proprietor of the complainant; PW2-Narinder Pal, Assistant Manager of State Bank of Patiala, Jalandhar Branch, who proved the cheque, in question, that was returned unpaid. He has also proved the certified copy of the demand draft register as Ex.PW2/A; and PW3-Sukhwinder Kumar, an Accountant of the complainant-firm who produced the bill book containing bills issued against the accused. The photocopy of the Sales Tax Returns for the period 1.7.1998 to 30.9.1998 was also placed on record as Ex.PW3/A. 5. The accused was examined under Section 313 Cr.P.C. while putting all the incriminating material appearing against him in the prosecution evidence, which he denied and pleaded false implication. No witness was examined by the accused in his defence. 6. After hearing both the parties, the learned trial Court convicted and sentenced the accused for the offence and term as indicated at the outset of this judgment. 7. Feeling aggrieved from the judgment of conviction and order of sentence, an appeal was preferred by the accused before the Sessions Court which was dismissed by learned Appellate Court vide judgment dated 13.11.2002. CRR No.85 of 2003 -4- 8. Still feeling aggrieved from the judgment of learned Appellate Court, the accused (herein petitioner) has filed this revision petition. 9. Learned counsel for the petitioner has argued that the alleged goods were never delivered to the petitioner. He has further stated that there are no signatures of the purchasers on the receipt of goods and no G.R. number is available on record. The name of the transport, who allegedly delivered the goods to the petitioner, does not find mention in the Bills. He has also argued that in order to invoke provisions of Section 138 of the Act, the petitioner has to prove that there is a legally enforceable debt or other liability. He has further argued that in the instant case, the ingredients of Section 138 of the Act are not proved. 10. On the other hand, learned counsel for the State has argued that from the record, the fact of issuance of cheque by the petitioner is proved. It is also proved on record that the cheque, in question, was dishonoured due to insufficient funds and not for any other reason, therefore, the ingredients of Section 138 of the Act are fulfilled. 11. I have heard learned counsel for the parties and perused the record. 12. There is no dispute that the petitioner placed an order with the respondent for the purchase of goods, viz., Printing Paper White, Art Paper, College Book Printing Neta Ji Subhash Chander Degree and CRR No.85 of 2003 -5- College Book Printing Regional Engineering College, as is made out from Annexures P-3 and P-4. Further, there is no dispute to the fact that cheque, Ex.P4, dated 24.8.1998 for Rs.70,000/- was presented within six months from the date of its issuance, i.e., on 25.8.1998. The said cheque was dishonoured by the Banker (State Bank of Patiala, Branch Hamirpur), vide its memo Ex.P6 dated 4.9.1998 with the remarks, ‘insufficient funds’. Vide memo Ex.P5 dated 10.9.1998, the banker of the complainant informed that the cheque stands dishonoured. As mandated by law, legal notice Ex.P7 was served upon the accused-petitioner, through registered post, within 15 days from the date of receipt of information/communication regarding dishonour of the cheque, which is duly proved from the postal receipts Exs.P8 and P9, dated 18.9.1998. 13. Admittedly, the facts of issuance of cheque dated 28.4.1998 for Rs.70,000/- and that the cheque was duly presented with the Bank for realization but the same was dishonoured, are positively proved on record. Further, the fact of issuance of notice for payment served upon the petitioner is also proved on record from the postal receipts. 14. From the record, it is proved that the petitioner issued Cheque No.648982 dated 24.8.1998 for Rs.70,000/- in favour of the complainant towards the payment of goods ordered by him, with the assurance of its realization. Further, there is no dispute on facts that the said cheque was presented with the Banker within six months of its CRR No.85 of 2003 -6- issuance and that the said cheque was dishonoured for the reasons, as noticed hereinabove. Legal notice was also not taken care of by the petitioner. 15. Learned counsel for the petitioner refers to the case titled as M/s Kumar Exports Vs. M/s Sharma Carpets, 2009(1) R.C.R. (Criminal) 478. However, the facts of the instant case are clearly distinguishable inasmuch as the case cited is concerned because in the said case, the placement of order was not proved on record. In the case in hand, the placement of order is duly proved and the credit account of the petitioner with the complainant is also proved on record. Before proceeding further, the reproduction of Section 138 of the Act is considered to be appropriate for just adjudication of the matter, which reads as under:- “138.Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank, CRR No.85 of 2003 -7- such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for [a term which may be extended to two years], or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course CRR No.85 of 2003 -8- of the cheque, within fifteen days of the receipt of the said notice.” Therefore, the ingredients of Section 138 of the Act are fully established in the instant case. 16. In the circumstances, the present revision petition is hereby dismissed. The orders passed by the learned Courts below are maintained. The petitioner is stated to be on bail. His bail bonds shall stand forfeited. He shall be taken into custody forthwith to suffer the remainder of his sentence. 15.11.2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter : Yes/No