OM PARKASH Vs. VED PARKASH

JUDGEMENT

(1.) This revision is directed against the judgment dated 13.07.2016 passed by Additional Sessions Judge, Fazilka, upholding the judgment of conviction and order of sentence dated 12.06.2015 passed by Judicial Magistrate Ist Class, Abohar, whereby petitioner was convicted for the offence punishable under section 138 of the Negotiable Instruments Act, 1881, (for short 'N.I. Act') and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs. 2,000/- with default stipulation to undergo simple imprisonment of one month, for dishonouring of a cheque for Rs. 1,40,000/- having been issued by the petitioner in favour of the respondent-complainant .

(2.) It is the contention of learned counsel for the petitioner that the claim of the respondent-complainant for an amount of Rs. Rs. 1,40,000/- is based upon the bahi entries and in the light of the judgments of this Court in Balbir Singh v. Raj Krishan 2015(2) RCR (Criminal) 812 and Narsi Dass v. Surender 2015(1) Civil Court Cases 489, wherein it has been held that bahi entries cannot be made the basis for projecting it to be a loan having been advanced, in discharge whereof the cheque is alleged to have been issued by the petitioner and dishonour of which could have been said to be an offence under section 138 of the N.I. Act. His further contention is that blank cheque was taken by respondent-Ved Parkash from the petitioner, as he being a commission agent, had an upper hand on him. The amount has been inserted by the respondent despite there being no liability on the part of the petitioner. The said cheque, therefore, cannot be said to be a legal tender which would fulfill the requirement of the provisions of the statute resulting in the conviction and sentence, as has been imposed by the Courts below. He, therefore, prays for setting aside the orders passed by the trial Court as well as the Appellate Court and acquit the petitioner of the offence for which he has been convicted and sentence. In the alternative it is prayed that the sentence of the petitioner may be reduced keeping in view the fact that the amount which is stated to be the loan, is not heavy which would deserve a sentence of two years, as has been ordered by the trial Court and upheld by the Appellate Court.

(3.) On the other hand, counsel for the respondent-complainant has vehemently submitted that the petitioner had borrowed money from respondent-Ved Parkash on two occasions i.e. an amount of Rs. 55,000/- on 27.06.2011 and Rs. 1,00,000/- on 03.12.2011, out of which he had repaid only a sum of Rs. 14,985/-. In discharge of this liability, petitioner had drawn a cheque bearing No.626208 dated 02.05.2012 for a sum of Rs. 1,40,000/-. The said cheque was drawn on Canara Bank, Branch Abohar. When the said cheque was presented on 04.06.2012, the same was returned with the memo remarking 'insufficient funds'. Statutory notice was served upon the petitioner on 08.06.2012 under registered cover and thereafter the amount having not been paid by the petitioner, a complaint was filed on 23.07.2012. He further submits that the bahi entry is only qua Rs. 55,000/- dated 27.06.2011 out of which an amount of Rs. 14,985/- has been returned, whereas a cheque was issued by the petitioner for the amount of Rs. 1,00,000/- borrowed by the petitioner on 03.12.2011 which was through an account payee cheque issued by respondent-Ved Parkash and the said cheque was duly encashed by the petitioner and proved on record.