Sh.Prem Singh vs Sh. Nath Ram

Kuldip Singh, J.—This revision is directed against the judgment dated 14.12.2010 passed by learned Additional Sessions Judge,Mandi, in Criminal Appeal No. 42 of 2006, affirming judgment dated 09/10.11.2006 passed by learned Judicial Magistrate Ist Class, Court No. II, Mandi, in Complaint No. 140-I/2004. The facts, in brief, are that respondent had filed a complaint against petitioner u/s 138 of the Negotiable Instruments Act, 1881, (for short ''Act'') on the ground that petitioner in the year 2003 had purchased a tractor from respondent for a consideration of Rs. 1,30,000/-. Out of total sale consideration, an amount of Rs. 55,000/-was paid in cash by the petitioner, whereas, for the rest of the amount of Rs. 75,000/-the petitioner had given cheque bearing No. 2115717 dated 10.03.2004 drawn on Himachal Pradesh State Co-operative Bank, Nagwain. The cheque on presentation on 24.03.2004 was dishonoured for ''insufficient funds''. The respondent issued notice dated 27.03.2004 to petitioner demanding the cheque amount, but despite that petitioner did not pay any amount. Thereafter, the respondent filed the complaint.

The petitioner was summoned. The notice of accusation was put to the petitioner u/s 138 of the Act. The respondent examined 3 P.W.s. The statement of petitioner was recorded u/s 313 Cr.P.C. He denied the case. The petitioner led defence evidence and examined DW-1 Ganga Ram.

On conclusion of trial, the learned Magistrate convicted the petitioner on 09/10.11.2006 u/s 138 of the Act and sentenced him to undergo simple imprisonment for one year for offence punishable u/s 138 of the Act. The petitioner was directed to pay Rs. 85,000/-compensation to the respondent, in default of payment of compensation, the petitioner was directed to further undergo simple imprisonment for a period of three months.

The petitioner assailed the judgment dated 09/10.11.2006 by filing appeal which was dismissed by learned Additional Sessions Judge, Mandi, on 14.12.2010, hence revision.

The learned counsel for the petitioner has submitted that the two Courts below have erred in convicting and sentencing the petitioner. The evidence has not been properly appreciated. The conclusion drawn by two Courts below is based upon surmises and conjectures. The submission has been made for acceptance of the revision and setting aside the impugned judgment. In the alternative, the learned counsel for the petitioner has submitted for taking lenient view on the quantum of sentence. He has submitted that petitioner has deposited the entire compensation amount in this Court and he has already undergone imprisonment from 19.10.2011 to 20.01.2012 i.e. about 3 months 2 days. The learned counsel for the respondent has supported the impugned judgment. He has submitted that the two Courts below have rightly appreciated the evidence on record. In revision the evidence cannot be reappreciated. He has prayed for dismissal of the revision.

CW-1 Nath Ram has stated that he had sold tractor to Prem Singh for Rs. 1,30,000/- in the year 2003. Prem Singh had paid Rs. 55,000/- to him and for balance amount of Rs. 75,000/-, he had issued cheque dated 10.03.2004 Ex.CW1/A which was presented by him in Himachal Co-operative Bank, Nagwain, on 24.03.2004, but it was dishonoured on the ground ''insufficient funds''. The memo of the bank is Ex.CW1/B which was given along with cheque and letter Ex.CW1/C. The notice Ex.CW1/D was given to the petitioner, postal receipt is Ex. CW1/F. The notice was given on 27.03.2004. It was delivered to the petitioner on 01.04.2004, acknowledgement is Ex.CW1/E. The petitioner did not pay any amount despite the notice. In cross-examination, he denied that the tractor was agreed to be sold only for Rs. 55,000/-. He denied that he obtained blank cheque of Rs. 75,000/-from petitioner. He denied that no cheque was issued by the petitioner.

CW-2 Deep Kumar Walia, Manager, State Co-operative Bank, Nagwain, has stated that petitioner present in the Court has account No. 129 in the bank. The attested copy of the ledger of the bank pertaining to petitioner is Ex.CW2/A. The cheque Ex.CW1/A was presented in the bank by respondent on 24.03.2004, but was not encashed as the amount in the account No. 129 was ''insufficient''. The memo of the bank is Ex.CW1/B which is signed by him. The letter Ex. CW1/C was written by him to respondent along with cheque and memo. In the account of petitioner from January, 2004 to March, 2004, there were only Rs. 75/-. In cross-examination, he has stated that in Ex.CW2/A there is no reference of payment of cheque. He denied that the cheque was not presented in the bank.

CW-3 Bhuri Singh, Postman (wrongly given number CW�1) has stated that the residence of petitioner is situated in his beat. He had given one registered letter to the petitioner which was sent by respondent. He obtained signatures of Prem Singh on acknowledgment Ex.CW1/A. In cross-examination, he has stated that he did not obtain the signatures of witness on acknowledgement. He denied that no letter was delivered to Prem Singh.

DW-1 Ganga Ram has stated that Nath Ram had sold his tractor to Prem Singh for Rs. 1,30,000/-, Prem Singh had paid Rs. 55,000/-and the balance amount was left. The tractor met with an accident thereafter. In cross-examination, he has stated that Prem Singh is related to him. The balance amount of Rs. 75,000/-was left to be paid by petitioner to respondent and for that petitioner had issued cheque which was dishonoured.

Ex.CW1/A is cheque No. 2115717 dated 10.03.2004 amounting to Rs. 75,000/-. Ex.CW1/B is the memo dated 24.03.2004 of Himachal Pradesh State Co-operative Bank Limited, Nagwain, showing that cheque No. 2115717 amounting to Rs. 75,000/-was dishonoured on account of ''insufficient funds''. Ex.CW1/C is the letter dated 24.03.2004 of Himachal Pradesh State Co-operative Bank Limited, Nagwain, addressed to Nath Ram indicating return of cheque No. 2115717 amounting to Rs. 75,000/-. Ex.CW1/D is the notice dated 26.03.2004 of Nath Ram addressed to Prem Singh indicating that the cheque No. 2115717 on presentation was dishonoured and demanding payment of Rs. 75,000/-. Ex.CW1/E is the acknowledgement.

The petitioner in his statement u/s 313 Cr.P.C. has denied that he issued cheque Ex.CW1/A dated 10.03.2004 for Rs. 75,000/-. He denied for want of knowledge that the cheque on presentation in the bank was dishonoured. He denied that notice Ex.CW1/D was issued by respondent demanding payment of cheque. He also denied acknowledgement Ex.CW1/E.

CW-1 Nath Ram has proved that the cheque Ex.CW1/A was issued by petitioner to respondent for Rs. 75,000/-on account of balance amount of sale of tractor. This cheque was presented by the respondent in the bank, but dishonoured, which has been proved by CW-2 Deep Kumar. CW-2 has stated that memo dated 24.03.2004 Ex.CW1/B dishonouring of the cheque was given by him to respondent. The cheque was dishonoured on account of ''insufficient funds''. He has also stated that in between January, 2004 to March, 2004, the petitioner had only Rs. 75/- in his account in the bank. The notice Ex.CW1/D has also been proved by the respondent demanding Rs. 75,000/-from the petitioner. The notice has been delivered to the petitioner as has been specifically stated by respondent. The acknowledgement Ex.CW1/E of the notice which was sent under registered cover has also been proved by CW-3 Bhuri Singh, Postman. He has stated that acknowledgement Ex.CW1/E is signed by Prem Singh. DW-1 Ganga Ram has also stated that cheque given by petitioner was dishonoured.

It has been proved that the cheque was issued by petitioner for consideration which on presentation was dishonoured. The two Courts below have rightly appreciated the material on record. It is not a case where the Courts below have ignored some important piece of evidence or relied inadmissible evidence. The evidence in revision cannot be reappreciated. The evidence has been considered for the purpose only whether the Courts below have rightly appreciated the evidence. There is no perversity in the impugned judgment. The Courts below have rightly convicted the petitioner u/s 138 of the Act.

The learned counsel for the petitioner has submitted that lenient view may be taken against the petitioner. The petitioner has already undergone imprisonment of 3 months 2 days. He has deposited compensation amount Rs. 85,000/-in the Registry of the High Court. The learned counsel for the respondent has not denied that petitioner has already undergone imprisonment for about 3 months 2 days and he has deposited Rs. 85,000/-compensation in the Registry of the High Court. In these circumstances, the substantive sentence of the petitioner is modified to the extent already undergone. The judgment of the trial Court, affirmed by lower appellate Court to this extent is modified. The compensation amount Rs. 85,000/-awarded by the learned Courts below is upheld. The revision is dismissed subject to above modification of the substantive sentence. The compensation amount lying in deposit in the Registry of the High Court be remitted in the account of respondent along with interest, if any, to be furnished by the respondent to the Registry.