IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 1673 of 2005 Date of decision: November 19, 2010 V.B. Ispat (P) Ltd. and another .. Petitioners Vs. State of Punjab and another .. Respondents Criminal Revision No.1674 of 2005 V.B. Ispat (P) Ltd. and another .. Petitioners Vs. State of Punjab and another .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: None for the petitioners. Mr. Amit Chaudhary, AAG, Punjab for the respondent-State. Mr. Rishav Jain, Advocate for Mr. Arihant Jain and Arun Jindal, Advocates for the respondent-complainant. A.N. Jindal, J This judgment of mine shall dispose of two connected revision petition Nos. 1673 and 1674 of 2005, having arisen out of the same judgment. However, the facts necessary for disposal of these petitions are taken up from Criminal Revision No.1673 of 2005. Narinder Kumar Proprietor of M/s S.D. Industrial Corporation, Motia Khan, Mandi Gobindgarh (herein referred as, 'the complainant') had preferred the complaint under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, 'the Act') against the petitioners. On trial, the trial court vide its judgment dated 8.10.2001 convicted the accused-petitioners (herein referred as, 'the accused') and sentenced to undergo rigorous imprisonment for one year. However, in appeal, the appellate court while dismissing the appeals reduced the sentence to nine months. The complainant was doing the business in Motia Khan, Mandi Gobindgarh under the name of style of M/s S.D. Industrial Corporation. On 24.6.1996, the accused company borrowed a sum of Rs.1,50,000/- from the Criminal Revision No. 1673 of 2005 & Criminal Revision No. 1674 of 2005 -2- complainant vide cheque No.1011447 and agreed to pay this amount along with interest. In order to discharge its legally enforceable liability, accused Adesh Kumar had issued cheque bearing No.9080666 dated 15.9.1996 for a sum of Rs.1,50,000/- in favour of the complainant and assured that the cheque would be encashed on presentment. The cheque was presented in Union Bank of India for encashment which was dishonoured vide memo dated 11.1.1997 with the remarks “insufficient funds”. The complainant on receipt of the memo from the bank called upon the accused to make the payment within 15 days through a notice . However, the accused did not respond and intentionally refused to take delivery of the notice on 3.2.1997. Since a clerical mistake had occurred in the notice regarding the number of the cheque, therefore, a letter in continuation of the letter dated 22.1.1997 was again sent to consider the number as 9080666 instead of 9080966. Ultimately, on filing of the complaint and after recording preliminary evidence, the accused was summoned. Notice of accusation was issued upon him to which he pleaded not guilty and opted to contest. In order to prove the offence, the complainant examined Pardeep Kumar (PW1), Rakesh Kumar Clerk (PW2) and Satish Kumar Bhalla (PW3). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. However, no evidence was led in defence. The trial ended in conviction. The appeals preferred by them were also dismissed. Though none has appeared on behalf of the petitioner, yet, these criminal revision petitions being five years old, I have no option but to decide the same the absence of counsel. Record perused. Having scrutinized the record, it transpires that Satish Kumar Bhalla (PW3) appeared on behalf of the complainant Narinder Kumar. He is his attorney vide deed of attorney Ex.PW3/A. The said deed of attorney dated 3.3.1997 authorised him to prefer the complaint. Thus, he cannot be said to incompetent to prefer the complaint. Similar observations were made in case K.M. Maregowda v. M/s Seven Hills Ex-Import Corporation, Criminal Revision No. 1673 of 2005 & Criminal Revision No. 1674 of 2005 -3- Banglore, 2004 Crl. L. J. 4119; Surinder Singh v. Johan Impex (Pvt.) Ltd. 1996 (3) RCR (Criminal) 621 and K. Ramachandra Rao and others vs. State of A.P. Rep. by Public Prosecutor and another 2005 (2) RCR (Criminal) 482. As such, this contention cannot be accepted. There may be other contention raised by the learned counsel for the accused is that the notice served upon the accused is not valid and legally proved and also that the complaint is time barred. As regards the validity of the notice, Rakesh Kumar while appearing in the witness box as PW-2 identified the signature of Manmohan Sharma who had issued the notice Ex.P5 on behalf of the complainant. He has proved the postal receipts Ex.P7 to Ex.P10 which were issued by the Postal Authorities in the ordinary course of business. These receipts stand unrebutted. The notice Ex.P5 indicates that the accused was informed about the dishonour of the cheque though had returned with the remarks that the accused had refused to receive the same. It is settled by now that when once the notice has been issued, though the accused has returned the same un- served or otherwise as refusal by the petitioner, then it would be treated that the notice was duly served upon the accused, unless otherwise is proved. As regards the anticipated argument that the complaint is time barred, it may be observed that the cheque Ex.P1 was issued by the complainant on 15.9.1996 and it was presented in the bank on 12.1.1997 which was dishonoured vide memo Ex.P2 with the remarks that the accused had insufficient funds in his account. Satish Kumar (PW3) has confirmed that a notice dated 22.1.1997 (Ex.P5) was issued regarding dishonour of the cheque to the accused on 24.1.1997 which was received back with the remarks refused to receive on 3.2.1997. Thus, the complaint was filed within a period of limitation i.e. 18.2.1997. There is no reason to hold that the complaint was time barred. As regard the anticipated contention that it was not a legally enforceable liability regarding which the cheque was issued. The record transpires that the accused had received a sum of Rs.1,50,000/- on 24.6.1986 vide cheque No.1011447 Ex.PW3/B. The complainant has proved his copy of the statement of account Ex.PW3/C so also the copy of the account of the accused Ex.PW3/D, in order to prove that the amount was Criminal Revision No. 1673 of 2005 & Criminal Revision No. 1674 of 2005 -4- transferred in his name, then the presumption arises that the accused had issued a cheque in order to discharge the legally enforceable liability. No evidence in rebuttal has been led in order to rebut the same. Both the courts below have returned the findings of fact that the cheque issued by the accused in order to discharge his liability, was dishonoured by the bank and he could not respond to the notice and did not repay the amount. No grounds for interfere could be detected. Resultantly, these revision petitions being devoid of any merit stand dismissed. Copy of the judgment be sent to the Chief Judicial Magistrate, Fatehgarh Sahib, for compliance. November 19, 2010 (A.N. Jindal) deepak Judge