SURYA KANT Vs. RAJESH MITTAL & ANR

JUDGEMENT

(1.) This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C.') prays for setting aside the judgment dated 1.7.2004 passed by the Additional Sessions Judge, Yamuna Nagar at Jagadhri accepting the view expressed by the Judicial Magistrate, Ist Class, Jagadhri dated 4.12.2003. Both the Courts have convicted the petitioner for an offence committed by him under Section 138 of the Negotiable Instruments Act, 1881 (for brevity 'the Act') and have sentenced him to undergo rigorous imprisonment for a period of six months with a fine of Rs. 2,000/-.

(2.) The complainant-Smt. Rajesh Mittal instituted a complaint against the petitioner with the allegations that the accused-petitioner had issued cheque No. 00J-394581 dated 15.12.1995 drawn on Punjab National Bank, Indira Market, Jagadhri for an amount of Rs. 51,680/-. On presentation of the cheque by the complainant, it was returned to him on 16.12.1995 with an endorsement 'insufficient funds'. On 20.12.1995, statutory notice was served on the petitioner which was replied by him but he failed to make the payment by complying with the notice. After recording preliminary evidence under Section 200 Cr.P.C., the learned Magistrate summoned the petitioner on 3.3.1997.

(3.) The trial Court accepted the evidence of Yash Pal, Officer, Punjab National Bank who appeared as CW-1 and stated that the cheque had been sent to their Bank for payment on 16.12.1995 and only a sum of Rs. 968.02 paise was available in account of the petitioner. He further deposed that even earlier, there were no sufficient funds in the account of the petitioner to satisfy the amount stated in the cheque. A certified copy of the statement of account is Ex. C2. The cheque was returned with the endorsement of 'insufficient funds' which is Ex.C3. Further reliance was placed on the statement made by Puran Chand, Clerk who has been working in the Bank of India. According to this witness, the cheque was deposited with their Bank on 15.12.1995 and the same was sent for clearance to the Punjab National Bank. He also proved Ex. C3, the endorsement showing that the cheque was returned by the Punjab National Bank. Thereafter, the complainant-Smt. Rajesh Mittal herself appeared as CW-3 and deposed in terms of the complaint. According to the complainant a statutory notice Ex. C7 dated 20.12.1995 was served upon the petitioner through her counsel vide postal receipt Ex. C8 and A.D. receipt Ex. C9. She has further, deposed that the petitioner had assured her that the cheque would be encashed but neither the cheque was encashed nor he had repaid the amount. The defence evidence produced by the petitioner has not been accepted because there is no dispute with regard to signatures on the cheque Ex. C1 and a valid presumption under Section 118(g) of the Act has been raised. It has also been presumed that the cheque was issued for an existing liability and for consideration. The petitioner failed to show that there was no consideration or that he did not issue the cheque.