Gurdev Singh vs M/s. Punjab Agricultural Traders

Gurdev Singh, J.—The complaint was filed u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act'') against the

petitioner/accused, Gurdev Singh, as sole proprietor of M/s Gurdev Pesticides, by M/s Punjab Agricultural Traders, through its sole proprietor

Inder Singh, complainant/respondent. As per the contents of that complaint, both the parties are dealing in the purchase and sale of pesticides. The

accused purchased pesticides from the complainant and in discharge of his liability he issued cheque No. 821/CA/12/681554 dated 20.5.1997 for

Rs. 50,000/- drawn on Indian Overseas Bank, Branch Ferozepur City. When that cheque was presented to his banker by way of collection,

through the banker of the complainant, the same was dishonoured, vide memo dated 20.5.1997 on account of ''insufficient funds'' in the account of

the accused. The complainant approached the accused and disclosed that fact, who assured him that there would be sufficient funds in his account

and that he should present the cheque again on 13.6.1997. On that assurance of the accused, the complainant again presented the cheque for

collection through his own banker on 13.6.1997, but the same was again dishonoured on account of ''insufficient funds'' in the account of the

accused: He approached the accused with the request to make the payment of the cheque amount but he paid no heed. Then he served notice

dated 28.6.1997 through his counsel and still that amount was not paid. On the basis of the preliminary evidence produced by the complainant, the

JMIC, Ferozepur found sufficient grounds for proceeding against the accused u/s 138 of the Act. He was summoned accordingly. On his

appearance before the trial court, notice of that offence was given to him, to which he pleaded not guilty and claimed trial. To prove his guilt, the

complainant examined himself as CW 3, R.K. Dhawan, Clerk-cum-Cashier(CW 1) and Naresh Kashayap, Clerk (CW 2). After the complainant

closed his evidence, the accused was examined by the trial court and his statement was recorded u/s 313 of the Code of Criminal Procedure. All

the incriminating circumstances appearing against him in the evidence of the complaint were put to him in order to enable him to explain the same.

He did not deny all those in criminal circumstances. He admitted that the cheque was ''presented to his banker for payment and the same was

dishonoured and that after he was told about dishonouring of cheque he assured the complainant to present the same again to his banker and that

he would deposit the amount of the cheque in his account, and that when the cheque was presented second time the same was again dishonoured

on account of insufficient funds in his account. While denying the other circumstances, first he pleaded that he is not having an account in Indian

Overseas Bank, Ferozepur and that he never issued cheque Ex. C-1 and then he changed his plea and stated that he had given the cash amount of

the cheque to the complainant. He was called upon to enter on his defence and thereafter with the permission of the court he appeared as his own

witness as DW 1. After going through the evidence and hearing both the sides, the Chief Judicial Magistrate, Ferozepur, vide his judgment dated

1.4.2003, convicted the accused for the offence u/s 138 of the Act and sentenced him to undergo rigorous imprisonment for a period of one year

and to pay a fine of Rs. 3,000/- and in default thereof to further undergo rigorous imprisonment for a period of one month. The accused preferred

an appeal against that conviction and sentence, which was dismissed by the Additional Sessions Judge Ferozepur, vide his judgment dated

13.12.2005. Now the present revision has been preferred against that conviction and sentence.

I have heard learned counsel for both the sides.

The only submission of the learned counsel for the petitioner/accused is that the complainant failed to prove that the cheque was issued by the

accused in discharge of legally enforceable liability as he failed to prove on record the account books in order to prove that he had sold the

pesticides to the accused and cheque was issued in lieu of the price thereof.

It is a case where most of the facts were admitted by the accused in his statement recorded u/s 313 Cr.P.C. He admitted the issuance of

cheque, dishonouring thereof on account of insufficient of amount in his account and giving assurance to the complainant for presenting second time

on the plea that there would be sufficient funds available in his account for the honouring of cheque. He also stated in the statement that he had

given the amount of cheque. Thereafter he appeared in the witness box as DW 1, after obtaining permission of the learned trial court. At that time

he took a somersault. He came with the statement that the amount was borrowed by his father in the year 1996 and it was his father who had paid

a sum of Rs. 50,000/- to the complainant in the year 1997. During his cross-examination he admitted in so many words that he himself and the

complainant are dealing in pesticides though he denied the fact that he had purchased the pesticides from him and cheque in question was issued in

lieu of the price thereof.

From the evidence produced by the complainant it stands proved that cheque Ex. C-1 was issued by the accused. It was categorically stated by

Inder Singh complainant CW 3 that the accused purchased pesticides from him and in discharge of that liability issued the cheque. In support of

that oral statement the complainant has also proved on record the copy of the account book Ex. C-7, which is the account of the accused being

maintained by the complainant. As per that account book he purchased goods worth Rs. 92,600/- from 21.05.1996 to 21.06.1996. In these

circumstances presumption can well be drawn u/s 139 of the Act that this cheque was issued in discharge of legally enforceable debt. It has

recently been held by Apex Court in Rangappa v. Mohan, 2010 (3) RCR (Criminal) 164 that the presumption mandated by Section 139 of the

Act does indeed include the existence of a legally enforceable debt or liability.

Thus, no fault can be found with the finding recorded by the learned trial court, which were upheld by the learned appellate court, that the

cheque was issued by the accused in discharge of legally enforceable debt which on presentation to his banker was dishonoured on account of

insufficient funds in his account and he failed to pay the amount of that cheque to the complainant in spite of issuance of legal statutory notice.

There is no merit in this revision petition and the same is hereby dismissed.

Accused/petitioner be taken in custody to serve the sentence imposed upon him.