CRIMINAL REVISION NO.2331 OF 2011 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: OCTOBER 13, 2011 Pardeep Kumar .....Petitioner VERSUS State of Punjab and another ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Mandeep S. Sachdev, Advocate, for the petitioner. **** RANJIT SINGH, J. Pardeep Kumar, petitioner, in two Criminal Revision Nos.2331 and 2321 of 2011 (Pardeep Kumar Vs. State of Punjab and another), has impugned two separate orders of conviction for an offence under Section Section 138 of the Negotiable Instruments Act and award of sentence of two years rigorous imprisonment in each case and so also the order passed by the Appellate Court upholding his conviction and sentence in these two separate cases. The petitioner and the complainant being the same, both the revisions were heard together and are being disposed of through this common judgement. The facts are also common and are being noticed from Criminal Revision No.2331 of CRIMINAL REVISION NO.2331 OF 2011 :{ 2 }: 2011. The petitioner has been sentenced to undergo rigorous imprisonment for two years in each case coupled with fine of `10,000/- and in default of payment of fine, he was to undergo 15 days rigorous imprisonment. In the complaint filed against the petitioner, the complainant has alleged that he had advanced `10 lacs an interest free loan, which the petitioner had agreed to return in April 2004. When the complainant approached him for return of the amount, the petitioner had issued two cheques bearing No.900586 and 900587 dated 23.4.2004 and 19.4.2004 respectively for a sum of `5,00,000/- each drawn on Oriental Bank of Commerce. The petitioner assured that the cheques shall be honoured on presentation. When the complainant presented these cheques for encashment through his bankers, these were dishonoured with the remarks “exceeds arrangements”. The complainant accordingly filed a complaint under Section 138 of the Negotiable Instruments Act, when the petitioner failed to discharge the liability after the demand notice. On the basis of evidence led, the Trial Court held the petitioner guilty of the offence and was sentenced as already noticed. The appeals filed by the petitioner against these two separate orders of conviction have been dismissed and accordingly he has filed the present two revision petitions. CRIMINAL REVISION NO.2331 OF 2011 :{ 3 }: The counsel for the petitioner pleads that factum of petitioner having advanced the loan without executing any document would be enough to cast cloud over the correctness of the version of the complainant. He would also submit that such a huge amount could not have been paid orally and so this version can not be believed. The counsel also contends that the loan was statedly advanced to petitioner, Pardeep Kumar, where the cheques were issued by M/s Pardeep Electrical, which was not arrayed as an accused. The counsel also pleads that no recovery suit has been filed. The Appellate Court had rightly appreciated the submissions made in regard to the capacity of the complainant to advance this huge loan and has looked into the evidence in this regard minutely. The complainant had given evidence to say that the petitioner had good friendly relations and so had taken this friendly loan for a short term period with a promise to return the same. When the complainant approached him for return of this loan, he had given him the abovesaid two cheques, which were admittedly dishonoured. The Court had rightly noticed that the petitioner did not address any question to the complainant in regard to his capacity to advance this amount as loan. The statement of the complainant, however, revealed that he was doing a business of cloth merchant for CRIMINAL REVISION NO.2331 OF 2011 :{ 4 }: the last 15-20 years. The witness otherwise admitted that he was not a money lender and, thus, was not maintaining books of accounts. The defence had given suggestion to the witness that he had forged and fabricated the cheques in question and had filed a false complaint. Despite this stand, the defence went on to suggest the complainant that he had taken these cheques as security. So was the plea of the petitioner, when he made statement under Section 313 Cr.P.C. The petitioner stated that the cheques were given as security for providing loan but the complainant had not advanced any loan to him and had misused the cheques. The defence, thus, was not even sure of its stand. This would happen only when plea is raised without any conviction. The testimony of the complainant did receive support from the stand taken by the petitioner himself that the cheques were to secure the loan. The Courts have rightly noticed that the petitioner is an educated person and he could not have given these cheques as a security without first getting the loan and even if he had done so but had not received this money as loan, he could not be expected to sit back and wait and was bound to raise hue and cry and take appropriate proceedings. The defence plea was accordingly not found worth acceptance and the case of the complainant was found to be worthy of belief and found well established. The submission that the legal presumption that CRIMINAL REVISION NO.2331 OF 2011 :{ 5 }: can be raised under Section 139 of the Negotiable Instruments Act stands rebutted, was not accepted, rightly so in my view because of the stand taken by the petitioner. The petitioner was found to be wavering. At one stage, the petitioner pleaded that the cheques were forged and fabricated but later on pleaded that these were given as security for raising the loan, which was not ultimately advanced. The presumption arising under Section 139 of the Negotiable Instruments Act, thus, could not be rebutted by the petitioner as per his own stand, once he admitted having given the cheques as security to loan. It is not a case where he questioned the capacity of the complainant to advance loan. The Court has also held the petitioner liable in his personal capacity and merely because the cheques were given by him on behalf of the firm would not mean that the complainant was required to implead the firm as a party. In view of the factual position that has emerged in the case, the ratio of law laid down in John K.John Vs. tom Varghese & Anr., 2007(4) Civil Court Cases 690, would have no applicability. No doubt, the Hon'ble Supreme Court has observed that where no instrument is executed, though a huge loan was advanced, the presumption under Section 139 of the Negotiable Instruments Act can be rebutted but accused in this case had discharged the burden in facts of the said case and his acquittal was upheld. In the present CRIMINAL REVISION NO.2331 OF 2011 :{ 6 }: case, the petitioner has himself admitted that he had advanced the cheques as security for loan but has raised a defence that the loan ultimately was not advanced. Similarly, the ratio of law in Rajendraprasad Gangabishen Porwal Vs. Santoshkumar Parasmal Saklecha & Anr., 2008 (4) Civil Court Cases 474 apparently would not apply because in this case the Bombay High Court had found that the complainant was in debt and had not produced any evidence to prove financial viability to raise huge amount. No such consideration arise in the present case. Similar is the ratio in the case of K.Prakashan Vs. P.K.Surenderan, 2007(4) Civil Court Cases 712, where the complainant himself was found borrowing money from his brother and father and was so found not in a capacity to advance loan. Even this is not the position in the case in hand. The petitioner otherwise is seeking re-appreciation of the evidence, which though may be a permissible course, but should not ordinarily be resorted to unless the findings recorded by the Courts are found to be perverse in any manner. It has been so held by Hon'ble Supreme Court in Bhim Singh Vs. State of Haryana, 2002(10) SCC 461. Faced with this situation, counsel for the petitioner pleads that the petitioner has been separately sentenced in these two cases and the same be ordered to run concurrently. In support, he has placed reliance on Shafiq CRIMINAL REVISION NO.2331 OF 2011 :{ 7 }: s/o Jahur Ahmed Vs. State of M.P. And another,, 2010 (2) RCR (Criminal) 95, Sameer Ahmad and others Vs. State of Haryana, 2010 (2) RCR (Criminal) 612 and Achalchand Sancheti Vs. State of Rajasthan, 2010(3) RCR (Criminal) 576. Basically, it is one loan transaction for which the petitioner has issued two cheques on different dates. It can be termed as same or one transaction. Award of different sentences may appear a bit harsh. Since the matter is pending before this Court through present two revision petitions, this Court would have power to consider this prayer in view of the law laid by Full Bench of this Court in Jang Singh Vs. State of Punjab, 2008(1) RCR (Criminal) 323. Thus, case is made out for considering the prayer for issuing direction for making the sentences to run concurrently. Therefore, sentences of two years rigorous imprisonment awarded in these two cases is ordered to run concurrently but at the same time fine imposed in each case shall stand enhanced to sum of `25,000/-. In case of default in payment of fine, the petitioner shall undergo further period of 6 months rigorous imprisonment in addition to the sentence already awarded. The revision petitions are otherwise dismissed. October 13, 2011 ( RANJIT SINGH ) khurmi JUDGE