Case: Devender Kumar Singla Vs. Baldeo Krishan Singhla

2. Complainants case in a nutshell is as under:On 7th August, 1992 the accused Devender Kumar Singla in the company of his wife the order accused Mala Singla, purchased 7000 Master plus shares for Rs. 1,69,000/from the complainant Baldev Krishan in the presence of Teja Singh son of Sajjan Singh. The complainant wanted that the payment thereof be made in cash, but accused Devender assured him that as he was a reputed dealer in the sale and purchase of shares, and his business ran into lacs, the payment by cheque would be more in order. The complainant acting on his representation accepted a post dated cheque No. 447131for a sum of Rs. 1,69,000/drawn on New Bank of India, Moga, and issued by accused Mala Singla, and was payable on 8th August, 1992. The complainant also delivered 7000 shares and in token of having received the same, Devender executed a receipt Ex. PW 3/B. When the cheque was presented for encashment on 8th August, 1992, it was dishonoured on the ground that the payment had been stopped by the drawer and this fact was conveyed to the complainant vide memo Exh. PW 3/C dated 8th August, 1992. As the subsequent efforts to recover the money from the accused proved futile, the complainant filed the complaint in the Court of theJudicial Magistrate, Moga. After recording the preliminary evidence, both the accused were summoned to face trial for offences punishable under Sections 420 and 109 IPC. On a consideration of theevidence of the complainant. Baldev Krishanas also that of Ram Adharan employee of the Union Bank of India, Moga. Tarsem Lalan employee of the New Bank of India. Moga, Teja Singhand Naresh Kumara clerk of Punjab National Bank, Moga, a prima facie case punishable under Section 420 read with Section 34 IPC was found to have been made out against both the accused and they were charged accordingly to which they pleaded not guilty and claimed trial.3. The Trial Court held that the complainant has not been able to establish several relevant factors. It was held that the transaction took place on 27th July, 1992 as claimed by the accused, and not on 7th August, 1992 as alleged by the complainant. There was no material to show that any shares were delivered to the accused. There was no record as regards the identity of the owner of the shares or as to whether they had in fact been transferred to the names of the accused. The existence of the alleged 7000 Master Plus shares was doubted. It was held that if the complainant was having 7000 Master Plus shares, he could have proved this fact by summoning the relevant records, but such records were not produced. Each share certificate has a distinction mark, and if the complainant had purchased the shares he should have been aware of the person from whom he had purchased them and there was no material to show that the accused had transferred any Master Plus shares in their names. With these observations theJudicial Magistrate. Moga directed acquittal of the accused persons.4. Aggrieved by the said order, the complainant preferred an appeal before the Punjab and Haryana High Court. By the impugned judgment the High Court accepted the appeal so far as accused Devender Kumar Singla is concerned, but dismissed the same so far as Mala in concerned. It took note of the fact that there was no dispute that the cheque had been issued and a receipt was executed by the accused Devender Kumar Singla which clearly stated that the shares had been delivered to him. Merely because the complainant had filled the name of the beneficiary of the cheque, that did not dilute the very important factor that the accused Devender had clearly stated in the receipt that he had issued the cheque against payment of 7000 Master Plus shares and had received delivery of the shares. It was further noted that the accused Devender took the stand about the agreement to transfer the shares by 5th August, 1992. If that was so, the High Court observed, there was no necessity for directing the bank to stop the payment on 1st August, 1992. There was no reason whatsoever for the accused to apprehend any foul play at the hands of the complainant prior to 5th August, 1992. The stand taken by the accused Mala Singla was at a great variance with that of her husband Devender Kumar Singla. According to accused Mala she had gone out to her parental house leaving some blank cheques signed and when she returned on 30th July, 1992 she found the cheque book missing and therefore directed the Bank to stop payment. This was at a complete variance with the stand of Devender who admitted the transaction between him and the complainant. Accused Mala totally denied any such transaction. The position regarding transactions in the bank account of accused Mala was also noticed by the High Court, which held that the accusations so far as the accused Devender were fully established, but the role of accused Mala was not fully established to bring home the accusations under Section 420 IPC. Therefore, the accused Devender was convicted under Section 420 IPC and sentenced to undergo imprisonment for one year and a fine of Rs.Acquittal of accused Mala was, as noted above, maintained.

Reasoning:
So far as the appeal filed by the complainant is concerned, learned counsel for the complainant submitted that the accused Mala had stopped payment of the cheque and, therefore, being party to the transaction, she should also be convicted.6. So far as the appeal filed by the accused Devender is concerned, learned counsel submitted that the High Court has analysed the factual position. In view of the receipt executed, the contents of which are extracted in the High Courts judgment, there was no scope for the accused to pleaded that there was no delivery. Even if it is conceded for the sake of arguments that the complainant was not able to tell the full details regarding the shares, that does not in any manner corrode the credibility of his case. The plea that an advance receipt was given was never taken during trial and in any event no suggestion in that regard was given to the complainant who was examined asely because the accused stated that he had not received the shares or that the transaction took place on 27.7.1992 in his examination under Section 313 of Cr.P.C. that is really of no consequence. The statement under Section 313 is not evidence. It is only the accuseds stand or version by way of explanation, when incriminating materials appearing against him are brought to his notice.11. Absence of any suggestion during cross examination cannot be made up by a statement under Section 313 Cr.P.C. Act that stage, the prosecution does not get an opportunity to question the accused about his stand in the statement under Section 313.12. It is also seen thatstands have been taken as to why stoppage of payment was done. As rightly noticed by the High Court, if the stand of the accused was that shares were to be handed over by 5.8.1992, there was no necessity to direct stoppage of payment on 1.8.1992. Stand before the trial Court was that accused Mala stopped payment when she came to know that accused No.1 had used her signed blank cheque. But during the course of arguments, learned counsel for the appellant submitted that the accused Mala had no knowledge of any transaction for purchasing 7000 Master Plus shares, with no identification or particulars of said shares.13. Above being the position, the High Courts judgment convicting the accused Devender suffers from no infirmity. However, custodial sentence imposed appears to be slightly on the higher side. Considering the peculiar circumstances of the case, we reduce the same to three months, instead of one year as directed by the High Court. Criminal appeal No. 1036/1997 is allowed only in respect of the sentence though challenge to the conviction has failed.