KARTAR CHAND Vs. JAGDISH CHAND AND ANR

JUDGEMENT

(1.) Present criminal revision petition filed under Section 397 of the Code of Criminal Procedure is directed against the judgment dated 7.3.2009, rendered by the learned Sessions Judge, Hamirpur, H.P., in Criminal Appeal No. 104 of 2008, setting-aside the judgment of conviction and sentence passed by the learned Judicial Magistrate, 1st Class, Barsar in Private Complaint No. 125-1 of 2005 dated 17.11.2008.

(2.) Briefly stated facts as emerged from the record are that the petitioner ( in short 'the complainant') and respondent No. 1 (in the 'accused') were running the business of 'Boot' and 'Chapple' as whole sale and retail in the name and style of 'Lucky Boot House" at Bhota, Tehsil Barsar, District Hamirpur, H.P. as partners. It is further revealed from the complaint that the accused voluntarily relinquished the partnership/business and after settlement of accounts; a sum of Rs. 10 lacs was to be paid by him to the complainant. As per the complainant, the accused paid a sum of Rs. 1 lac in cash and for the remaining amount of Rs. 9 lacs, he issued two post dated cheques bearing Nos. 269556 and 269557 of the Punjab National Bank (in short 'the PNB'), Mair, District Hamirpur, HP, in favour of the complainant. But fact remains that when the complainant presented the cheque bearing No. 269557 (Ext.CW1/A) dated 15.8.2005, amounting to Rs. 7 lacs in his bank i.e. Kangra Central Cooperative Bank (in short "the Cooperative Bank"), Bijhar, the same was dishonored for 'insufficient funds' and the complainant was intimated about it. The complainant got legal notice issued to the accused calling upon him to make the payment of cheque good within a period of 15 days. Since, the accused failed to make the payment in terms of legal notice, the complainant was constrained to initiate proceedings under Section 138 of the Negotiable Instruments Act (in short the Act) against the accused. Learned Judicial Magistrate, Ist Class, Barsar, Hamirpur, H.P., put a notice of accusation to the accused, to which he pleaded not guilty and claimed trial. Learned trial court on the basis of evidence adduced on record found the accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation to the tune of Rs. 7,50,000/-. Being aggrieved and dis-satisfied with the aforesaid judgment and order of conviction and sentence dated 17.11.2008 and 18.11.2008, respectively passed by the learned trial Court, the accused approached learned Sessions Judge, Hamirpur, by way of Criminal Appeal No. 104 of 2008, which was allowed vide judgment dated 7.3.2009. Hence this criminal revision petition before this Court by the petitioner-complainant.

(3.) Mr. Anand Sharma, Advocate, appearing for the petitioner-complainant, vehemently argued that the judgment passed by the learned Sessions judge is not sustainable as the same is not based upon the correct appreciation of the evidence available on record and same deserves to be quashed and set-aside. Mr. Sharma, further contended that the learned Sessions Judge wrongly arrived at the conclusion that the petitioner-complainant had not issued the notice to the accused within the prescribed time after receipt of memo from the concerned Bank. He with a view to substantiate his aforesaid argument, invited attention of this Court to the letter Ext.CW1/B to demonstrate that Cooperative Bank had sent letter dated 21.9.2005 to the petitioner-complainant intimating therein with regard to receipt of bounced cheque amounting to Rs. 7 lacs on account of 'insufficient funds' from PNB Mair. Since cheque was received by hand, by the complainant on 21.9.2005, legal notice dated 19.10.2005, which stands duly proved on record as Ext.CW1/G, was served well within stipulated period. Mr. Sharma forcefully contended that in terms of the amendment carried out in Section 138(b) of the Act 1881 on 06.02.03, notice was required to be sent to the drawer of the cheque within a period of 30 days from the date of receipt of information from the Bank regarding the returning of the cheque and as such, immediately after receipt of information from the Bank on 21.9.2005, the complainant got served legal notice dated 19.10.2005. He argued that bare perusal of the statement of CW3 Sanjay Negi, the official of the Cooperative Bank, clearly suggests that cutting/over righting in date was made by the Manager of the Bank, who after correcting the date from 6th September, 2005 to 21st September, 2007 appended his signature. Mr. Sharma, also invited attention of this Court to that portion of the statement of CW3, wherein he stated that the signature appended on the intimation letter encircled with red ink and marked as Mark-W and Y are of the Manager, which were also identified by him. Hence, finding of sessions judge deserves to be quashed and set aside being wrong and contrary to the facts of the record.