IMPORTANT POINT
Dishonour of cheque issued by accused in favour of complainant in discharge of legal liability will make him liable for conviction and sentence.

Chander Bhusan Barowalia, J.—The present Criminal Revision Petition under Section 397 read with section 401 of the Code of Criminal Procedure, against the judgment dated 10.7.2009, passed by learned Sessions Judge, Shimla, in Criminal Appeal No.1-S/10 of 2008 titled Paras Ram vs. Rakesh Kumar & anr., dismissing the appeal of the petitioner and confirming the judgment of conviction and sentence passed by learned Judicial Magistrate 1st Class, Theog, District Shimla, in Case No.124-2 of 2002, whereby the petitioner was convicted and sentenced to undergo rigorous imprisonment for six months for the offence punishable under Section 138 of the Negotiable Instruments Act and to pay compensation to the tune of Rs.1,50,000/-, to the complainant.

2. The brief facts giving rise to the present petition are that the complainant and respondent (hereinafter referred to as ‘complainant’) maintained the complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as Act) against the accused/petitioner (hereinafter referred to as ‘accused) and learned trial Court sentenced the accused, as stated hereinabove, which judgment was affirmed by the learned lower Appellate Court. As per the complainant, on 5.9.2002 accused issued a cheque bearing No.985107 in the sum of Rs.1,50,000/- in favour of the complainant in the discharge of legal liability for consideration, drawn at State Bank of India, Branch, Deha. The complainant presented the said cheque in the State Bank of India, Branch Deha, for encashment on 14.9.2002, but the said cheque was dishonoured by the concerned Bank, for want of sufficient funds in the account of the accused. The State Bank of India, Branch Deha, issued dishonour slip to the complainant on the same date. On 24.9.2002 the complainant got issued a registered notice to the accused through his counsel disclosing the said fact that the cheque has been dishonoured for want of sufficient funds in his account and demanded the payment of the amount within fifteen days from the date of receipt of the notice. The notice was received by the accused on 1.10.2002, but he failed to pay the said amount.

3. In order to prove his case and bring home the guilt of the accused, the complainant examined as many as two witnesses including himself.

4. After the closure of the evidence of the complainant, the incriminating circumstances and evidence were put to the accused, which have been admitted by him to be correct and pleaded that he had struck bargain of apple with the complainant Rs.10,000/- were paid to the complainant through Bindu and Rs.10,000/- were handed over by cash. The complainant did not handover to him the apple vehicle and sold the apples at his own instance. He has examined DW-1 Sandeep Kumar in defence.

5. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

6. As far as the issuance of cheque is concerned, the same is not undisputed, the accused has specifically admitted that he issued a cheque bearing No.985107. The said fact is duly proved on the strength of testimonies of CW-1 (complainant), Shri Rakesh Kumar and CW-2, Shri S.K. Panth. CW-1, Shri Rakesh Kumar who deposed that accused issued cheque Ex.C-1, which was presented by him in State Bank of India, Branch Deha, for encashment on 14.9.2002, but the cheque was dishonoured by the Bank, because of insufficiency of funds in the account of the accused in the said Bank regarding which the said Bank issued memos, Ex.C-2 and Ex.C-3. The complainant presented the said cheque in Bank and the same was dishonoured for want of sufficient funds in the account of the accused has been duly supported, corroborated and substantiated by the deposition of CW-2, Shri S.K. Panth. The testimony of CW-2, Shri S.K. Panth, could not be shattered in spite of lengthy cross-examination made on behalf of the accused. CW-2 has specifically stated in cross-examination that on 6.9.2002, there was Rs.28,000/-