IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1576 of 2009 (O/M). Date of Decision : August 06, 2009. William Sidhu aged about 44 years, son of Sh. Gurdial Singh, resident of H. No. 248, Urban Estate, Phase-I, Patiala, (Presently confined at Central Jail, Patiala). ...... Petitioner . Versus. Tavinder Kumar son of Sh. Tarlochan Lal, resident of H. No. 461, Jattan Wala Chowntra, Patiala. ..... Respondent . CORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. Present:- Mr. A.S. Jattana, Advocate, for the petitioner . Mr. S.P.S. Sidhu, Advocate, for the respondent. AUGUSTINE GEORGE MASIH, J. The petitioner-accused having been convicted under Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as “the Act”) and sentenced to undergo imprisonment for a period of one year and to pay a fine of Rs. 1,000/- in default of payment thereof to further undergo rigorous imprisonment for one month by the learned Judicial Magistrate 1st Class, Patiala, vide order dated 09.01.2007 and thereafter the appeal preferred by the petitioner-accused against the said order of conviction and sentence having been dismissed by the learned Additional Crl. Revision No. 1576 of 2009. Sessions Judge, Patiala, vide judgment dated 27.05.2009, has filed the present Criminal Revision Petition, challenging the conviction and sentence. Counsel for the petitioner has contended that the Courts below have not appreciated the evidence, which has been brought on record by the petitioner-accused, wherein it has been specifically stated and proved by him that the cheques, which have been dishonoured, although, have been signed by the petitioner-accused, but were filled up in the handwriting of respondent-complainant, therefore, cannot be said to be a valid tender under the provisions of Section 138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as “the Act”). He submits that blank cheques were handed over to the respondent-complainant as 10% security amount of compensation to make payment to the respondent-complainant for getting the compensation to the petitioner-accused for the plot of 1000 sq. yds. situated at village Baran, which was in the name of Ms. Gurparkash Kaur Sidhu (deceased sister of the petitioner-accused), and subsequently acquired by P.U.D.A. He on this basis submits that the cheques having not been drawn by the petitioner-accused, which is the requirement of Section 138 of the Act, the said cheques could not be made the basis for filing a complaint under Section 138 of the Act. He relies upon the judgment of Andhra Pradesh High Court in the case of Avon Organics Limited Versus Poineer Products Limited and others, 2004 (2) Civil Court Cases 579 and the judgment of Kerala High Court in the case of Gopan Versus Tonny Verghese, 2008 (1) Civil Court Cases, 642, in support of his contentions. The second contention which has been raised is that the account having been closed and the respondent-complainant being aware of the said fact could not have presented the cheques to the Bank and, therefore, could -2- Crl. Revision No. 1576 of 2009. not make the petitioner-accused liable under Section 138 of the Act. It is his contention that as per Section 138 of the Act, the cheque, which has been drawn by a person, should be of an account maintained by him with a Bank for payment of any amount of money. Since the account had already been closed and that is the memo, which has been issued by the Bank, he cannot be held guilty under the provisions of Section 138 of the Act. For this contention, he relies upon the judgment of Hon'ble the Supreme Court in the case of Joseph Versus Philip Joseph 2001(1) Civil Court Cases, 220 (Kerala). It is further the contention of counsel for the petitioner that the presumption under Section 139 of the Act is not absolute, but rebuttable on the part of petitioner-accused. The petitioner has taken a stand that the cheques in question were issued as security and not in discharge of any debt or other liability, therefore, the conviction and sentence of the petitioner- accused cannot be sustained. He relies upon the judgments of Hon'ble the Supreme Court namely John K. John Versus Tom Verghese and another, 2007 (4) Civil Court Cases, 690, and K. Parkashan Versus P.K. Surenderan, 2007 (4) Civil Court Cases, 713 (S.C.). On the other hand counsel for the respondent-complainant submits that it has not been proved on record that the cheques have been filled in by the respondent-complainant and in any case even if the said cheques have been filled in by the respondent-complainant, the signatures on the cheques have not been denied by the petitioner-accused and, thus, the cheques are valid tender under the Act, and the petitioner-accused cannot disown his liability merely because the cheques have not been filled in by the petitioner-accused himself. As regards the contention of counsel for the -3- Crl. Revision No. 1576 of 2009. petitioner-accused that the account was closed and therefore, the cheques, which have been issued by the petitioner-accused would not come within the ambit of Section 138 of the Act. He submits that nothing has come on record, which would show that the date on which the cheques were issued, the account had already stood closed. He further submits that if this contention is accepted then the purpose for which the amendment has been brought about by the Legislature, would stand nullified as the credibility of the instrument would always be in question and a person who issues a cheque would always with a malafide intention issue the said cheques, which is not valid tender and circumvent the provisions of Section 138 of the Act. As regards the contention that the presumption under Section 139 of the Act is rebuttable, he contends that the onus was upon the petitioner- accused, which he has failed to discharge that the cheques were issued not for any debt or liability, which he has failed to discharge. On the other hand, it has been proved by the respondent-complainant by producing evidence in the form of his Bank Account and statement, where withdrawal of the amount has been shown before the respective dates on which the amount is alleged to have been given to the petitioner-accused by way of friendly loan. On this basis, counsel for the respondent-complainant submits that the judgments passed by the Courts below are fully justified and do not call for any interference by this Court. I have heard counsel for the parties and with their able assistance have gone through the records of the case. The position, which stands culled out from the pleadings of the parties, is that the petitioner-accused requested the respondent-complainant to advance a friendly loan of Rs. 2 lakhs to him for business purposes with -4- Crl. Revision No. 1576 of 2009. an assurance to return the same within a period of three months. The respondent-complainant withdrew the said amount from his Bank Account on 03.03.2004 and the same was advanced to the petitioner-accused on 05.03.2004. The petitioner-accused in order to discharge this liability, issued a cheque No. 255325 dated 05.03.2004 for an amount of Rs. 2 lakhs, drawn on Bank of Punjab Limited, Branch Chhoti Baradari, Patiala, from his account No. 14725066 in favour of the respondent-complainant. Thereafter, on 20.04.2004, the petitioner-accused again approached the respondent- complainant for a loan of Rs. 1.50 lakhs for the purpose of business and in discharge of the said liability, the petitioner-accused issued a cheque No. 02000711 dated 04.06.2004 for an amount of Rs. 1.50 lakhs, drawn on Bank of Punjab Limited, Branch Chhotti Baradari, Patiala, in favour of the respondent-complainant. This amount of Rs. 1.50 lakhs, the respondent- complainant has shown to have been withdrawn by him from his bank account on 31.03.2004. In May,2004, the respondent-complainant requested the petitioner-accused for return of Rs. 3.50 lakhs to which the petitioner- accused responded by asking the respondent-complainant to present the cheques issued by him. On 29.05.2004, the respondent-complainant presented the cheque dated 05.03.2004 of Rs. 2 lakhs with the drawee Bank. The said cheque was returned by the Bank with remarks “Account Closed”, vide memo dated 29.05.2004. This fact was brought to the notice of the petitioner-accused, who assured that the total payment of Rs. 3.50 lakhs will be made to the respondent-complainant on or before 04.06.2004. On failure of the petitioner-accused to comply with his assurance, the respondent- complainant presented the second cheque dated 04.06.2004 of Rs. 1.50 lakhs on 08.06.2004 with the drawee Bank, which again was dishonoured and -5- Crl. Revision No. 1576 of 2009. returned, vide memo No. 08.06.2004 with the same remarks “Account Closed”. Thereafter, a legal notice dated 11.06.2004 was served upon the petitioner-accused to which the response was given by the accused, taking therein the plea that these cheques were not given in discharge of any liability or loan, but was a security amount of 10% of amount to be paid as compensation to the petitioner-accused by P.U.D.A. for a plot of his deceased sister on an assurance given by the respondent-complainant that he would get that amount to the petitioner-accused. The petitioner-accused having failed to make the payment of amount within the prescribed period under the Act, a complaint under Section 138 of the Act was preferred by the respondent-complainant. A perusal of the evidence as led by the parties would clearly show that the petitioner-accused cannot run away from the liability of cheque No. 255325 dated 05.03.2004 for Rs. 2 lakhs, signed by him as the respondent-complainant has been able to prove that he had withdrawn Rs. 2 lakhs from his Bank Account on 03.03.2004. As regards the liability of cheque No. 02000711 dated 04.06.2004 for an amount of Rs. 1.50 lakhs is concerned, the respondent-complainant has produced the evidence to show that he had withdrawn Rs. 1.50 lakhs on 31.03.2004 from his bank account, whereas in the pleadings, it has come that the petitioner-accused had approached the respondent-complainant for a loan of Rs. 1.50 lakhs for the purpose of business only on 20.04.2004. The contention, therefore, of the respondent-complainant that he had withdrawn the amount to make the payment to the petitioner-accused for the loan which he had sought from the respondent-complainant, cannot be accepted, but that would not lead to acquittal of the petitioner-accused as still cheque for an amount of Rs. 2 -6- Crl. Revision No. 1576 of 2009. lakhs drawn on 05.03.2004 would fall under the provisions of Section 138 of the Act. The contention of counsel for the petitioner that as the cheques, which have been given by the petitioner-accused were blank, therefore, they would not fall under the provisions of Section 138 of the Act, cannot also be accepted as signatures thereon has been admitted by him. The respondent- complainant on the basis of evidence led by him has been able to prove that he had indeed withdrawn Rs. 2 lakhs on 03.03.2004 from his bank account, which would go a long way to prove that the petitioner-accused had sought a loan from the respondent-complainant, and therefore, in discharge of the said loan, a cheque of Rs. 2 lakhs dated 05.03.2004 was issued by the petitioner-accused. As regards the writing on the body of cheque is concerned, the petitioner-accused has not been able to prove it beyond doubt, although D.W.3 Shri Navdeep Gupta, handwriting expert has given his opinion that the disputed hand writing on the cheque in question when compared with standard Ex. D.W.2/A and the signature of the respondent-complainant available on the order sheet dated 23.06.2006, do tally and the statement of D.W.2 Amarinder Singh, who is a practising Advocate at Patiala cast a doubt regarding genuineness of receipt Ex.D.W.2/A. While deposing Amarinder Singh has stated that he was neither a summoned witness nor he was asked by any of the parties to appear in the Court. He has further stated that he was not called by petitioner-accused William Sidhu and stated that he had come to the Court personally after coming to know about the case. In any case merely because the body of cheque does not depict the same to have been filled in by the petitioner-accused, cannot be said to be a ground -7- Crl. Revision No. 1576 of 2009. for holding the cheque to be not a valid tender when the signatures thereon are not disputed by the petitioner-accused. The onus was, therefore, heavily on the petitioner-accused to show and prove under what circumstances the said blank cheques were given. The petitioner-accused has failed to prove his contention by any evidence showing that Smt. Gurparkash Kaur Sidhu deceased sister of the petitioner-accused was at the first place having a plot measuring 1000 sq. yds. situated at village Baran and the acquisition thereof by P.U.D.A. Nothing has come on record by way of evidence that there was any dispute regarding payment of compensation pending with P.U.D.A. nor has it come on record as to how the complainant could have got the matter settled between P.U.D.A. authorities, and the petitioner-accused. Having failed to show as to for what purpose the cheques were issued by the petitioner-accused, the presumption as provided under Section 139 of the Act goes in favour of the respondent-complainant and the respondent- complainant has, by cogent evidence, been able to prove that he had withdrawn an amount of Rs. 2 lakhs from the Bank a few days before the same was handed over to the petitioner-accused and the petitioner -accused issued a cheque in discharge of that liability. The judgments of Andhra Pradesh High Court and Kerala High Court, relied upon by counsel for the petitioner in the case of Avon Organics Limited (supra) and Gopan Versus Tonny Verghese (supra) would not be of any help in the present case to the petitioner-accused. The contention of counsel for the petitioner that the cheques have been dishonoured with the remarks “Account Closed”, therefore, the liability under Section 138 of the Act would not arise, cannot be accepted. There is nothing on record to suggest that on the date when the cheque dated -8- Crl. Revision No. 1576 of 2009. 05.03.2004 was issued by the petitioner-accused, the account already stood closed and even if such a contention is allowed to be raised then the judgments of Kerala High Court in Joseph Versus Philip Joseph (supra) would not be applicable to the facts of the present case as in that case the account stood closed before the issuance of the cheque. The account in the case before Kerala High Court, was closed in the year, 1987, whereas the cheque was issued in the year, 1990. In any case, if the contention as raised by counsel for the petitioner is accepted that very purpose and intent for which the amendment was brought about by the Legislature in the Negotiable Instruments Act, would be frustrated. The objects and reason of the amendment Act of 2002, whereby Chapter XVII was incorporated provides for penalties in case of dishonour of a cheque. These provisions were incorporated with a view to enhance the credibility of the instruments. If it is held that a person can issue a cheque where the account stands closed and then wriggle out of the liability by stating that it would not be covered by provisions of Section 138 of the Act, it would amount to nullifying the effect of amendment of the year, 2002, and, therefore, this contention of counsel for the petitioner cannot be accepted. In any case, in the absence of any evidence to the effect that when the cheque dated 05.03.2004 was issued by the petitioner-accused, the account stood closed, the requirement of Section 138 of the Act, if read, as has been tried to be projected by counsel for the petitioner, would still be within the requirement of law as on the date when the cheque was issued, the account would be operative and not closed. In view of this position, the judgments of Hon'ble the Supreme Court in the case of John K. John (supra) and K. Parkashan (supra) would not be of any help to the petitioner. -9- Crl. Revision No. 1576 of 2009. In view of the above, I have come to a conclusion that the respondent-complainant has proved that cheque No. 255325 dated 05.03.2004 for a sum of Rs. 2 lakh issued in favour of the respondent- complainant stood dishonoured on the ground that the account stood closed and, therefore would fall within the ambit of Section 138 of the Act and, thus, stands rightly convicted and sentenced for the same by the Courts below. The orders passed by the Courts below do not call for any interference by this Court and, therefore, the present Revision Petition stands dismissed. (AUGUSTINE GEORGE MASIH) JUDGE August 06, 2009. sjks. -10-