Crl. Revision No. 1768 of 2004 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1768 of 2004 Date of Decision: February 14, 2011 Mrs. Geeta Prasher ---Petitioner versus M/s Laser Links (India) ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Sanjay Kaushal, Advocate, for the petitioner Mr.Adarsh Jain, Advocate, for the respondent *** GURDEV SINGH, J. This revision petition by Geeta Prasher, petitioner-accused, has been preferred against the judgment dated 17.8.2004 passed by Additional Session Judge (Ad hoc), Faridabad, vide which he dismissed the appeal preferred by the accused against the judgment dated 26.9.2002 and order dated 27.9.2002 convicting her for the offence under Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as “the Act”) and sentencing her to pay a fine of ` 5000/- and compensation of `. 3,20,000/- and in default thereof to undergo rigorous imprisonment for a period of six months. The facts, in brief, are that the complainant-respondent M/s Lazer Crl. Revision No. 1768 of 2004 -2- Links(India), which is a sole proprietorship concern, filed complaint through its sole proprietor, Bhupinder Singh, under the aforesaid section. As per the contentions made therein, the accused is the proprietor of her firm M/s KIA ZAN IMPEX, who got done the work of embroidery from the complainant from time to time, for a sum of ` 8 lacs(approximately). As part payment of that work, the accused issued cheque No. 572989 dated 21.3.1998 for `. 2 lacs, drawn on Canara Bank, South Extension, New Delhi. He presented the cheque for collection through his banker but the same was dishonoured, vide memo dated 24.3.1998, on account of 'insufficient funds' in the accounts of the accused. When he apprised her of that fact, she assured that on re-presentation of the cheque for the second time, the same will be encashed. On that assurance of the accused, he again presented the cheque for payment through his banker, but the same was dishonoured, vide memo dated 24.6.1998, with the remarks that “payment had been stopped”. He received that information on 26.6.1998 and thereafter, got issued a legal notice dated 3.7.1998 calling upon the accused to make the payment of the cheque but he failed to do so. On the basis of the preliminary evidence produced by the complainant, Judicial Magistrate found sufficient grounds for proceedings against the accused under Section 138 of the Act and she was summoned accordingly. On appearance of the accused in the trial court, notice of the offence was given to her to which she pleaded not guilty and claimed trial. To prove her guilt, the complainant examined herself as PW- 3, Manish Sharma, PW-1 and Neelam, PW-2. After the evidence was closed by the complainant, the accused was examined by the trial court and her statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against her in the prosecution evidence were put to her in order to enable her to explain the same. She admitted that she had been getting the embroidery work done from the complainant but pleaded that the cheque in Crl. Revision No. 1768 of 2004 -3- question was issued as advance payment. The amount due to the complainant had already been cleared before the notice was received by her. The supply was not made by the complainant in time as a result thereof the payment of the cheque was stopped. The accused was called upon to enter on her defence. She examined Ashok Bhatti, DW-1. After going through the evidence, so produced on the record, and hearing counsel for both the sides, the Judicial Magistrate convicted and sentenced the accused, as aforesaid. It has been submitted by the counsel for the accused that from the evidence produced by the complainant, it stands proved that only one bill dated 30.1.1998, Ex. P.A, had been issued before the cheque in question by the complainant, which was for a sum of ` 3204/- and all other bills proved on the record were issued after the date of the cheque, which itself makes probable the stand taken by the accused that this cheque was issued as a security and was not in lieu of the part payment to be made by the accused. Therefore, it cannot be said that any such offence under Section 138 of the Act has been committed. On the other hand, it has been submitted by counsel for the complainant that the payment had become due even before the issuance of the bills as the embroidery work was to be done by the complainant on the clothes which had already been supplied and by the time, the cheque was issued, a sum of ` 8 lacs was due to the complainant. The cheque was issued as a part payment and the dishonouring of the cheque on account of insufficient funds in the account of the accused and non-payment of the amount of the cheque after the service of the notice constitutes an offence. When the complainant entered the witness box as PW-3, he himself stated that the accused had been getting the embroidery work done from him on job work basis, for which bills Ex. P.A to P.H were issued and a sum of ` 8 lacs was due and for part payment cheque in dispute was issued. It is pertinent to Crl. Revision No. 1768 of 2004 -4- note that only bill Ex. P.A, is dated 30.1.1998, whereas all other bills are subsequent to 15.4.1998. The case of the complainant, as is evident from his statement, is that these bills were issued for the work done. Therefore, the amount became due to the complainant after the issuance of the bills. The position is further made clear by the complainant himself in the notice Ex. P-4 which was issued by him to the accused. Para No. 1 of that notice is reproduced as under:- “That you got done the job work of embroidery from my clients as per your orders from time to time and in lieu of the bills raised by my clients for the job work done, you issued the following cheque as proprietor and authorised signatory of your firm M/s Kiazan Impex, bearing cheque No. 572989 dated 21.3.1998 for a sum of Rs. 2,00,000/-(Rs. Two lacs only) as payees' account cheque drawn on Canara Bank, South Extension, New Delhi in favour of my clients against the account of your firm bearing No. 11927, in favour of my clients, and handed over the same to my clients at their place of business.” Thus, according to the complainant, the amount of ` 8 lacs had become due after the issuance of the bills and the cheque in question was issued in part payment of that amount. At the most it cannot be said that sum of ` 3204/- was due to the complainant from the accused on the day, the cheque was issued i.e. 31.3.1998. Therefore, there was no question of making part payment of ` 2 lacs by the accused. That makes probable the stand of the accused that this cheque was issued by way of security. It cannot be held that this cheque was issued in discharge of the previous liability. One of the main ingredient of Section 138 of the Act is missing in this case and the conviction of the accused could not have been recorded. Crl. Revision No. 1768 of 2004 -5- In view of the above discussion, the revision petition is hereby accepted and conviction and sentence of the accused is set aside. The fine and the costs/compensation, if already deposited, be refunded to the petitioner. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE February 14, 2011 PARAMJIT