VIRENDER SINGH Vs. LAXMI NARAIN

JUDGEMENT

(1.) THIS revision petition is directed against the judgment and order dated 17/12/2004, whereby the appeal preferred by the petitioner against the judgment dated 21/08/2004, passed by the learned Metropolitan Magistrate, was dismissed. By the judgment dated 21/08/2004 and order dated 09/09/2004, the learned Metropolitan Magistrate, New Delhi, had convicted the petitioner under S.138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the said Act) and directed him to be released on probation for a period of one year on furnishing a personal bond in the sum of Rs.25,000/- with one surety of the like amount and to pay a compensation of Rs.1,20,000/-.

(2.) THE facts as indicated in the impugned order are that the complainant gave a sum of Rs.80,000/- to the petitioner and his father, who were arrayed as accused No.1 and 2 respectively. THE said sum of Rs.80,000/- was allegedly paid by the complainant (respondent No.1) to the accused for the purposes of securing a job for the complainant's nephew in Haryana Police. In essence, this money was paid by way of illegal gratification for the purposes of arranging the said job through purported high profile political leaders. However, the complainant after having paid the said sum of Rs.80,000/- did not get the job for his nephew. Since the job was not made available to the complainant's nephew, the complainant requested the accused to return the amount of Rs.80,000/- to the complainant. THE said sum was not easily forthcoming. After great persuasion and intervention of elders, the petitioner admitted liability on behalf of his father and promised to pay the sum of Rs.80,000/- to the complainant and in pursuance of this promise, issued a cheque of Rs.80,000/- on 30/03/2000 drawn on Punjab National Bank, Najafgarh, Delhi. THE cheque on presentation was dishonoured by virtue of the memo dated 07/04/2000 with the remarks 'no account'. THEreafter, a statutory notice was served and since the payment was not forthcoming, the present complaint under S.138 of the said Act was filed. THE learned Metropolitan Magistrate, after conducting trial, found the petitioner to be guilty of the offence under S.138 of the said Act and, as indicated above, the petitioner being aggrieved by that decision preferred an appeal before the learned Additional Sessions Judge, who concurred with the learned Metropolitan Magistrate and upheld the conviction and sentence.

(3.) THE learned counsel for the petitioner placed reliance on the judgment of the High Court of Kerala in J. Daniel v. State of Kerala 2005 (3) KLT SN 75 (C.No. 88) . In the said decision, it is observed that the execution of the cheque is not sufficient to constitute an offence punishable under S.138 of the Act, unless it is proved that the debt or other liability is a legally enforceable one. THE Kerala High Court also held as under: