CRR No. 3197 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -- Date of decision: 30.04.2010 1. CRR No. 3197 of 2009 Raj Kumar Petitioner Versus Punjab Agro Industries Corporation Limited and others .......Respondent(s) 2. CRR No. 3206 of 2009 Vijay Kumar Petitioner Versus Punjab Agro Industries Corporation Limited and others .......Respondent(s) Coram: Hon'ble Ms Justice Nirmaljit Kaur -.- Present: Mr.Lakhwinder Singh Sidhu, Advocate for the petitioner Ms Geeta Sharma, Advocate for the respondent -.- 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporter or not? 3. Whether the judgement should be reported in the Digest? Nirmaljit Kaur, J. This order shall disposed of both the aforementioned petitions as they arise out of a common judgements/orders passed by the Courts below. Facts in short are that the Chief Judicial Magistrate, Mansa vide order dated 12.09.2007 passed by the Chief Judicial Magistrate, Mansa convicted and sentenced the petitioner under Section 138 of the Negotiable CRR No. 3197 of 2009 2 Instruments Act to undergo rigourous imprisonment for a period of one year and to pay a fine of Rs.5000/- and in default of payment of fine to undergo further R.I. for a period one month. Thereafter, an appeal was filed against the aforesaid judgement/order before the learned Additional Sessions Judge, Mansa, who dismissed the same vide judgement/order dated 11.11.2009. Thus, the present revision petition has been filed against both the aforesaid judgements/orders. The only short point raised by the learned counsel for the petitioner in the present revision petition is whether the cheque issued in favour of the complainant towards some existing liability, past or current or the same was issued for the purpose of security. While contending that the cheque was not towards any existing liability, it was argued by the learned counsel for the petitioner that the issuance of letter which has been admitted by CW-1 Gurnam Singh alone would show that there was no existing liability against which the cheque in question may have been issued. Further, as per the letter dated 24.09.2002 signed by the Punjab Agro and PUNSUP after taking consent of the brother of the partner of M/s Jai Vaishnu Rice Mills have shifted the rice about 2000 quintals lying with Jain Vaishnu Rice Mills in the ratio of 60:40 and no arrears are due and pending towards the said rice mills. Attention of the Court was also invited to para 9 of the judgement of the trial which read as under:- “9. Learned counsel of accused drawn attention of the Court to the cross examination of CW-1 Mohammad Salim Javery, where he has admitted that the cheque was given in advance on 28.08.2001 by the party and thereafter, the party was allowed milling of the paddy. He has admitted that the paddy was in joint custody of CRR No. 3197 of 2009 3 the department and the miller. He also admitted that they have filed a case before the Arbitrator regarding the paddy which was misappropriated by the accused and in this regard, award has been passed in favour of the complainant and execution in this regard is pending in the Court of learned Civil Judge (Senior Divisions) Mansa. He further admitted that they have taken advance cheque from the accused as the accused were under suspicion and they had misappropriated paddy of Punjab Agro Corpn. He also admitted that the sheller was not defaulter on the last year. He also admitted that the accused had delivered one 'gaddi' of rice to FCI and in this regard they had not made any re-adjustment in the cheque. He also admitted that he had not mentioned the amount of goods, which were returned back by the accused. He also admitted that a criminal case regarding fraud regarding same paddy has been filed against the accused.” Meaning thereby, that in view of the cross examination of CW- 1, liability cannot be fastened upon the petitioner and it was rather a cheque for security and not towards any liability. Hence, no offence under Section 138 of the Negotiable Instruments Act can be said to be made against the present petitioner. Learned counsel for the respondent, however, has pointed out that the matter was taken up before the Arbitrator, who has given his award in favour of the PUNSUP and as per the award, it is admitted that the petitioner is liable to pay almost an amount of Rs.1 crore. Learned counsel for the parties have been heard. While relying on the letter dated 24.09.2002, both the Courts below have duly held that the petitioner cannot claim any benefit on the basis of the aforesaid letter as the complaint was filed on 20.10.2001 CRR No. 3197 of 2009 4 whereas, the letter is dated 24.09.2002. The said letter only mention that no balance rice remains in the premises of M/s Jai Vaishno Rice Mill and that from the said letter, it could not be made out that nothing remained due towards the accused firm. The petitioner cannot escape the criminal proceedings as a consequence of dishonouring of the cheque just because the arbitration proceedings are pending. In fact, in the present case, the award of the Arbitrator proves the liability of the petitioner accused and further strengthens the finding that the dishonoured cheque was towards the said liability. The petitioner has not denied that he had issued the said cheque. The same is admitted. Therefore, he is liable for the consequence which led to the dishonouring of the cheque. No other point was raised. This is a revision petition. The scope of revision is limited. The amount of cheque is almost Rs.19,50,000/- which was dishonoured way back in the year 2001. No amount has been paid back till date. Even the execution of the award almost amounting to Rs.1 crore is pending. The sentence is awarded only for one year. A lenient view has already been taken while awarding the sentence. The present revision petitions are accordingly dismissed being devoid of merit. (Nirmaljit Kaur) Judge 30.04.2010 mohan