VAREN JALTA Vs. BIJA RAM AND ORS.

JUDGEMENT

(1.) This revision petition is directed against the judgment dated 30.4.2014 passed by learned Additional Sessions Judge-I, Shimla in Cr. Appeal No. 117-S/10 of 2012 whereby he affirmed the judgment of sentence dated 26.9.2012/15.10.2012 passed by learned Judicial Magistrate Ist Class, Court No. III, Shimla convicting the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act') on account of dishonour of cheque No. 107791 dated 21.4.2010 to undergo simple imprisonment for six months and to pay compensation of Rs. 2,24,000/- to the complainant.

(2.) The facts giving rise to the present revision are that the complainant Bija Ram filed complaint against the petitioner for offence under Section 138 of the Act on the ground that the complainant is an agriculturist and is having landed property and has ancestral house in the village. It is averred that the petitioner approached the complainant with the request for plot and had assured to get partition of the joint property of the complainant and as such, GPA was executed in respect of landed property. It is alleged that by taking undue advantage of ignorance and innocence of the complainant, the petitioner started selling the property of complainant without getting partition and demarcation. It is further alleged that the complainant came to know about selling of his property by the petitioner without partition and demarcation and that he had received huge amount of sale consideration from the purchaser without intimating the complainant. It is alleged that the complainant made personal inquiry in this regard and was compelled to revoke the GPA which was executed in favour of the petitioner. It is alleged that when complainant came to know about misdeed of the petitioner then he in the month of March, 2008 approached the complainant who then requested him not to proceed against him in the police and admitted that he has sold joint property of complainant and when complainant asked for the payment of the same then in lieu of payment the accused issued cheque bearing No. 107791 dated 21.4.2010 amounting to Rs. 2,00,000/- in favour of the complainant in order to discharge his liability, payable at PNB, Sanjauli, Shimla. It is further alleged that the complainant sent said cheque to his banker through banker of petitioner for encashment but the same was dishonoured for insufficient funds and in this regard bank issued memo. Thereafter, the complainant served a legal demand notice through registered post dated 5.8.2010 upon the petitioner informing him about dishonouring of his cheque but despite receipt of notice, the petitioner neither replied the same nor made the payment. When the petitioner failed to make payment despite receipt of notice, then the complainant was compelled to file the complaint against the petitioner.

(3.) After receipt of the complaint, preliminary evidence of the complainant was recorded and when after the perusal of the same and finding sufficient material on record then process against the petitioner was issued for offence under Section 138 of the Act. The presence of the petitioner was procured. After procuring the presence of the petitioner and when a prima facie case for the commission of offence under Section 138 of the Act was made out against the petitioner, notice of accusation for said offence was framed and put to the petitioner to which he pleaded not guilty and claimed to be tried.