Ramesh Jaswal vs Urmila Walia And Another

Virender Singh, J

Petitioner Ramesh Jaswal has filed the present revision petition, under Section 397 read with Section 401 of the Code of Criminal Procedure (hereinafter referred to as the ‘Cr.P.C’) against the judgment dated 14.06.2019, passed by the learned Sessions Judge, Hamirpur, District Hamirpur, H.P. (hereinafter referred to as the ‘learned Appellate Court’), in Criminal Appeal No. 48 of 2015, titled as Ramesh Jaswal vs. Urmila Walia (deceased) through her LRs and others.

The said appeal has been preferred by the petitioner against the judgment of conviction and order of sentence dated 26.08.2015, passed by the learned Judicial Magistrate, First Class, Court No.II, Hamirpur, District Hamirpur, H.P. (hereinafter referred to as the ‘learned trial Court’), in Pvt. Complaint No. 47-I/2011, titled as Urmila Walia vs. Ramesh Chand Jaswal.

Vide judgment of conviction and order of sentence, referred to above, the learned trial Court has convicted the petitioner for the commission of offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the ‘N.I. Act’) and sentenced him to undergo simple imprisonment for 12 months and to pay Rs.3,50,000/-as compensation.

For the sake of convenience, the parties to the present lis, are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

Perusal of the record shows that complainant Urmila Walia had filed a complaint under Section 138 of the N.I Act against respondent Ramesh Jaswal on the ground that accused, in lieu of debt, issued and handed over a cheque bearing No. 009145 dated 30.04.2011 for a sum of Rs.3,00,000/- to the complainant. The said cheque was drawn on State Bank of India, Hamirpur. The cheque was issued out of saving bank Account No.30686646029. The said cheque was thereafter presented by the complainant to her banker i.e. Allahabad Bank, Hamirpur and the said cheque was sent to the banker of the accused for collection, but the same was returned back by the banker with the remarks “funds insufficient”. Memo in this regard was issued on 27.07.2011, and the same was communicated to the complainant by her banker on the same day. Thereafter, the statutory notice was issued by the complainant through her Counsel on 08.08.2011. The said notice was duly acknowledged by the accused, however, according to the stand taken by the complainant, neither notice was replied to nor the amount was paid. The complainant after waiting for the statutory period, has filed a complaint under Section 138 of the N.I. Act.

On the basis of the documents annexed with the complaint, as well as, the preliminary evidence adduced by the complainant, learned trial Court has found a prima-facie case to proceed against the accused for the offence punishable under Section 138 of the N.I. Act, as such, he was summoned.

After securing the presence of the accused, the learned trial Court found a prima-facie case for the commission of offence punishable, under Section 138 of the N.I. Act, as such, notice of accusation was put to the accused, to which, he has pleaded not guilty and claimed to be tried.

Since, the accused has not pleaded guilty, as such, complainant has been directed to adduce evidence. Consequently, complainant has examined three witnesses.

Thereafter, the entire incriminating evidence, appearing against the accused, was put to him, in his statement, recorded under Section 313 Cr.P.C. He has denied the entire case of the complainant by taking the plea that he has not issued the cheque in question. However, he has not led any evidence in his defence.

The learned trial Court, after hearing the learned counsel appearing for the complainant, as well as, the learned counsel appearing for the accused, has convicted and sentenced the accused, as referred to above.

Feeling aggrieved from the judgment of conviction and order of sentence, the accused has preferred the appeal before the learned Appellate Court, however, the appeal preferred by the accused has been dismissed, vide judgment dated 14.06.2019.

The present revision petition has been filed before this Court, on the ground, that the learned trial Court has not considered the law and facts involved in the present case as the complainant could not plead and prove, in this case, that there was any subsisting liability at the time of issuance of cheque in question.

14.1. The evidence of the complainant, according to the accused, has not been considered in the proper perspective. According to the accused, once the liability was denied by the accused, it was incumbent upon the complainant to have proved the basis of the cheque i.e. any subsisting and legally enforceable liability.

To buttress his contention, learned counsel for the complainant has also relied upon the statement of CW-2 Gaurav Walia, who is Special power of attorney of complainant.

Highlighting the contradictions in the statements of CW-1 and CW-3, it has been prayed that the learned trial Court has wrongly convicted and sentenced the accused for the commission of offence punishable under Section 138 of the N.I. Act.

On the basis of grounds of revision petition, Mr. S.D. Gill, learned counsel appearing for the accused has prayed that the revision petition may kindly be allowed.

Per contra, Mr. Amar Deep Singh, learned counsel appearing for the complainant has opposed the prayer and argued that the there is nothing on record, from which, presumption as per Section 118 of the N.I Act, which is in favour of the complainant, who is holder of cheque can be rebutted.

Highlighting the fact that although the accused had denied the issuance of cheque, but he has not bothered to step into the witness box, after seeking permission of learned trial Court under Section 315 Cr.P.C.

On the basis of above facts, a prayer has been made to dismiss the petition.

Perusal of the record shows that the order of sentence was ordered to be stayed vide order dated 14. 08.2019, subject to depositing 15% of the cheque amount and furnishing personal and surety bonds in the sum of Rs.25,000/- to the satisfaction of the learned trial Court.

Thereafter, on 05.05.2022, on the request of the accused, he was permitted to deposit the cheque amount. On 23. 05.2022, the said cheque was deposited and thereafter, on his request, he was permitted to deposit remaining amount of Rs.50,000/-. The said amount, as per order dated 4. 07.2022, was deposited with the Registry of this Court.

On 07.12.2022, the following order was passed:-

“Learned counsel for the petitioner informs the Court that the entire compensation amount now stands deposited by the petitioner and endeavour of the petitioner is that the offence be compounded. On the request of learned counsel for the petitioner, three weeks’ time is granted to file an application for compounding of offence and to show his bonafides, let 5% of the cheque amount be deposited with the Himachal Pradesh State Legal Services Authority.”

In compliance to the said order, compounding fee has been deposited.

In order to decide the controversy involved in the present petition, it would be just and appropriate for this Court, to discuss the evidence, so adduced by the parties before the learned trial Court, upon which, the learned trial Court has convicted the accused.

CW-1 is Mr. Ishkar Vivek, who has been working in the SBI Main Branch, Hamirpur. He has deposed that cheque Ext. CW-1/B was received in the bank for clearance and the same was forwarded to KCC Bank Didwin Tikker for clearance, but the same was received back unpaid. He has proved the return memo as Ext. CW-1/F.

1. In the cross-examination, he has deposed that Account No. 30686646029 belongs to the complainant.

CW-2 Gaurav Walia is the special power attorney holder of his mother Urmila Walia. According to him, cheque Ext. CW-1/D for a sum of Rs.3,00,000/- was issued by accused Ramesh to his mother. The cheque was issued out of the account pertaining to Allahband Bank and the same was sent for encashment to SBI. The cheque was not encashed as the accused was not having sufficient funds in his account. He has proved the memo Ext. CW-1/C. Thereafter, notice Ext. CW-1/D was issued vide postal receipt Ext. CW-/F and acknowledgment Ext. CW-1/G.

Lastly, he has deposed that despite notice, accused has not made payment. Ext. CW-1/A and Ext. CW-1/E were not signed by this witness. He has denied that the cheque in question was not issued in favour of his mother. Ext. CW-/D, was handed over to his mother in the month of October, 2010 when, a compromise has been effected between the accused and the mother of this witness regarding the shop. One agreement was executed in this regard on 14. 10.2010 and another on 23.05.2011. He has admitted that in the year 2012, accused had filed case under Section 138 of the N.I. Act against this witness regarding cheque of Rs.6,00,000/-.

CW-3 Sh. Mahavir Singh was working as Clerk in the Allahabad Bank. According to him, cheque Ext. CW-1/D was received in the bank from the State Bank of India for encashment, but the same was not encashed and the same was returned vide memo Ext. CW-1/C. The document Ext. CW-1/C was issued by the then Manager Sh. S.C. Sharma, who has since been superannuated.

This is the entire evidence on record.

The accused, in the present case, has denied that he has ever issued the cheque in question. However, the accused has neither adduced any evidence nor appeared in the witness box to depose as per the stand taken by him. The statement of accused recorded under Section 313 Cr.P.C does not fall within the definition of evidence as per Section 3 of the Evidence Act. In such situation, when the accused himself has not appeared in the witness box to depose about the stand as taken by him in the statement recorded under Section 313 Cr.P.C, then, the said stand has rightly been discarded by the learned trial Court. As such, there is no occasion for this Court to differ with the findings recorded by the learned trial Court while convicting the accused under Section 138 of the N.I. Act.

So far as the quantum of sentence is concerned, in the absence of any sentencing policy in our country, the sentencing part has been left to the discretion of the Court. The law is good, but justice is better. Considering the said fact, while deciding the quantum, it was incumbent upon the learned trial Court to consider the fact about the benefit which had drawn by the accused for committing the offence alleged against the complainant.

Even otherwise, the accused, in this case, has deposited the entire amount of compensation, as well as, the compounding fee with the Member Secretary, H.P. State Legal Services Authority, in pursuance of directions issued by this Court vide order dated, as referred to above. The cheque in question is of Rs.3,00,000/-.

The learned trial Court has awarded the compensation of Rs.3,50,000/- and the said order of quantum of sentence has not been assailed by the complainant before the learned Appellate Court or before this Court. In such situation, the judgment passed by a Co-ordinate Bench of this Court, cited by the learned counsel for the complainant, titled as Rajinder Kumar vs. Pushpa Devi, Criminal Revision No. 293 of 2021, decided on 15.12.2022, no-where helps the case of the complainant.

When, the order of awarding compensation has not been assailed, then, the same cannot be questioned by the complainant, at this stage, i.e. at the time of deciding the revision petition.

Considering the peculiar facts and circumstances of the case that the accused has not only deposited the entire amount of compensation, but, also the compounding fee, the revision petition against the judgment of conviction is dismissed, however, the order of quantum of sentence is liable to be modified by reducing the substantive sentence from 12 months to the sentence of imprisonment till ‘rising of Court’. Ordered accordingly.

With these observations, the revision petition stands disposed of. Pending applications, if any, also stand disposed of.

Record be sent back.