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Criminal Revision dismissed; conviction and sentence under Section 138 NI Act upheld.
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Revision No. 1777 of 2008 Date of Decision : February 17, 2010
Karnail Singh
....Petitioner
Versus
M/s Kumar Finance Company, Railway Road, Kurukshetra
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present: Mr. Sameer Rathore, Advocate for Mr. Sumeet Goel, Advocate for the petitioner.
Mr. Manish Soni, Advocate for Mr. S.S.Dinarpur, Advocate for the respondent.
T.P.S. MANN, J.
The petitioner was tried on a private criminal complaint instituted by the respondent under Section 138 of the Negotiable Instruments Act, hereinafter referred to as 'the Act', on the allegations that cheque bearing No.013758 for Rs.40,800/- issued by him in favour of the complainant was returned by the bank unpaid for want of insufficient funds. Vide judgment and order dated 4/5.4.2008, learned Judicial Magistrate Ist Class, Kurukshetra convicted the petitioner for offence under Section 138 of the Act and sentenced him to undergo simple imprisonment for a period of one year and to pay an amount of Rs.40,800/- as compensation to the complainant. Aggrieved of the same, the petitioner filed an appeal but the same was found to be without any
Crl. Revision No. 1777 of 2008 -2-
merit and dismissed by learned Additional Sessions Judge, Kurukshetra on 29.8.2008 by upholding the judgment of conviction and order of sentence passed by the trial Court.
It was mentioned in the complaint that the petitioner had borrowed an amount of Rs.30,000/- from the complainant on 25.9.1999, repayable with interest @ 24% per annum after one and half year. The petitioner issued a post dated cheque for Rs.40,800/- in favour of the complainant to be encashed on 3.4.2001. The complainant presented the said cheque to the banker of the petitioner, i.e. Central Bank of India, Kurukshetra for payment through its banker, i.e. Allahabad Bank, Kurukshetra but it was returned unpaid for want of insufficient funds vide memo dated 24.7.2001. The said memo was received by the complainant on 27.7.2001. Accordingly, the complainant requested the petitioner to make the payment of the cheque in question by issuing notice dated 30.7.2001 which was duly received by the petitioner. Inspite of the same, the petitioner failed to make the payment and hence, the complaint.
Following the recording of the preliminary evidence of the complainant, the petitioner was summoned for commission of offence punishable under Section 138 of the Act. The petitioner appeared before the trial Court and was served with a notice of accusation on 18.2.2003 to which he pleaded not guilty and claimed trial.
In support of its case, the complainant had examined CW1 Raminder Singh, sole proprietor of the complainant-Company, who
Crl. Revision No. 1777 of 2008 -3-
tendered his affidavit as Ex.CW1/A besides producing attested copy of account of accused Ex.C1, pronote Ex.C2, receipt Ex.C3, cheque Ex.C4, memo dated 24.7.2008 Ex.C5, notice Ex.C6, postal receipt Ex.C7, postal certificate dated 16.8.2001 Ex.C8, registered notice Ex.C9, acknowledgment due Ex.C10, bank memo dated 24.7.2001 Ex.C11, balance sheets Ex.C12 and C13, and photocopies of receipts mark CA and CB. When examined under Section 313 Cr.P.C., the petitioner had pleaded innocence. However, no evidence was led by him.
After hearing learned counsel for the parties and going through the evidence brought on the record, the trial Court convicted and sentenced the petitioner, as mentioned above, which was lateron upheld in appeal.
Learned counsel for the petitioner submitted that the cheque in question was allegedly given to the respondent on 25.9.1999 but was presented in the bank for encashment on or about 24.7.2001 and by that time the validity of the cheque had expired. Moreover, on 25.9.1999 there was no existing liability for the petitioner to pay an amount of Rs.40,800/- to the complainant. Therefore, no offence under Section 138 of the Act was made out.
Learned lower appellate Court after relying upon Ashok Yeshwant Badave V Surendra Madhavrao Nighojakar 2001(2) Recent Criminal Reports 165 (SC) held that the period of six months for presentation of the cheque was to be reckoned from the date mentioned
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on the face of the cheque and not the previous date when it was made over by the drawer to the drawee. Therefore, the presentation of the cheque on or about 24.7.2001 was very much within the validity of the cheque in question, which was shown to be bearing the date as 3.4.2001.
On 25.9.1999 the petitioner had taken a loan of Rs.30,000/from the complainant, which was repayable after 18 months alongwith interest @ 24% per annum. At that time the petitioner had given a post dated cheque dated 3.4.2001 for discharge of his liability of Rs.40,800/-, i.e. the principal amount of Rs.30,000/- alongwith interest. The liability of the petitioner was to be considered as on 3.4.12001 and as it was Rs.40,800/-, it cannot be said that the cheque in question was not issued in discharge of any liability but was only as a security.
Under Section 118 of the Act there is presumption that a cheque is issued in discharge of any debt or other liability. The petitioner could have rebutted the said presumption by adducing the evidence. However, he failed to produce any evidence in defence.
In view of the above, no case is made out to upset the findings arrived at by the learned Courts below and, that too, in a revision filed under Section 401 Cr.P.C., which has a very limited scope.
Resultantly, there is no merit in the revision, which is, accordingly, dismissed.
( T.P.S. MANN )
Crl. Revision No. 1777 of 2008 -5February 17, 2010 JUDGE ajay-1
3 issues framed by the court
Whether presentation of the cheque was within validity period reckoned from the date on the cheque face.
Whether the cheque was issued to discharge a specific liability existing on the presentation date.
Whether the petitioner rebutted the presumption under Section 118 of the Negotiable Instruments Act.
Colour shows how this judgement treated each authority
Ashok Yeshwant Badave Vs Surendra Madhavrao NighojakarRelied on¶22
2001(2) Recent Criminal Reports 165 (SC)
3 provisions across 2 enactments
Karnail Singh
M/s Kumar Finance Company
T.P.S. Mann
As recorded by the court registry
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