GURDEV SINGH Vs. PUNJABI AGRICULTURAL TRADERS

JUDGEMENT

(1.) The complaint was filed under Section 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.

(2.) 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 under Section 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 under Section 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 incriminating 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.

(3.) 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 under Section 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.