DALJIT SINGH,DALJIT SINGH FLORA Vs. SAGUNI SINGH

JUDGEMENT

(1.) THE petitioner has filed this criminal revision challenging the order dated 20.10.2006 passed by the learned Addl. Sessions Judge, Rourkela in Criminal Appeal No. 64 of 2006 confirming the order dated 31.7.2006 passed by the learned JMFC, Pan posh in ICC Case No.101 of 2004/Trial No. 517 of 2005 convicting and sentencing him under Section 138 of the Negotiable Instruments Act to undergo simple imprisonment for a period of one year and to pay a compensation of Rs. 1,00,000/ - (Rupees one lakh), in default, to undergo simple imprisonment for a further period of three months.

(2.) THE brief facts of the case are that the petitioner -accused is a registered contractor under the name and style "M/s. D.S.Flora" having its ESI Sub Code No. 44 -1302/612. The opposite party -complainant is a petty contractor having no licence. From 17.12.2002, the opposite party was doing civil work on the strength of the agreement, vide Ext. A, at different places under the petitioner. He also used to make payment to the opposite party in the transaction. Likewise, the petitioner had to pay Rs. 50,000/ - to the opposite party which was outstanding dues for completion of certain work. In order to discharge such liabilities, the petitioner issued a cheque bearing number 506355 dated 30.3.2004 for a sum of Rs. 59,000/ - drawn on UCO Bank, Bazar Branch, Rourkela -II in favour of the opposite party with an undertaking that the cheque would be presented for encashment of money after receiving clearance from the petitioner. However, opposite party contacted the petitioner over phone and it was alleged that the petitioner had given consent to present the cheque for encashment. Accordingly, opposite party presented the cheque for encashment on 23rd April, 2004 at State Bank of India, Main Branch, Rourkela. The cheque was returned with an intimation that the cheque was bounced due to insufficient of funds. A notice was sent by the opposite party through registered post with A.D. on 6th May, 2004 calling upon the petitioner to make payment of the cheque amount within fifteen days. On 20th May, 2005, a letter was issued by the petitioner on the plea that without prior permission the cheque was presented. The opposite party accordingly filed a complaint petition on 31st May, 2004 on the above allegations for which cognizance for commission of offence under Section 138 of the N.I. Act was taken against the petitioner. The petitioner faced the trial. In the trial, the petitioner took a plea that the cheque was given as security and he admitted that the civil work entrusted to him was done by the opposite party. However, the petitioner took a specific stand that the Section Engineer (Works), South Eastern Railway, Bandomunda issued work orders and it was the understanding between the parties that after receiving the money from the railways by the opposite party, he will pay the same to the opposite party and till date the petitioner did not receive the money from the railways. However, the cheque issued as security was presented before the bank without his prior permission.

(3.) LEARNED counsel for the opposite party, however, vehemently opposing to the contentions raised by the learned counsel for the petitioner submitted that the opposite party has suffered a lot and the petitioner intentionally harassing the opposite party has not paid the money; rather after receiving the notice, the petitioner has also not taken any step to arrange the money.