The main legal point established in the judgment is the interpretation of the liability of the petitioner under Section 138 of the Negotiable Instruments Act and the determination of the nature of the cheque issued.

JUDGMENT

Surinder Gupta, J. - Petitioner-Rajeev Kumar Tyagi on complaint by respondentM/s Jai Krishna Liquors Pvt. Ltd. was convicted for offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for one year and to pay Rs. 29,48,000/- as compensation.

2. Case of complainant, in brief, is that it is running a liquor vend and is engaged in trading of different type of liquor and wine etc. The complainant-company supplied liquor to the petitioner and his partners, namely, Dhanvir Singh and Bhopal Singh from time to time on credit basis. Dhanvir Singh is running a shop at Railway Station Old Faridabad and Bhopal Singh is running his shop at Sectors 22 and 23, Faridabad. A sum of Rs. 22,55,080/- was outstanding against the petitioner and his partners, Dhanvir and Bhopal Singh, on completion of financial year 2011-12, details of which are as follows:-

(i) Amount due against petitioner : Rs. 10,67,699;

(ii) Amount due against Dhanvir : Rs. 10,32,573; and

(iii) Amount due against Bhopal Singh : Rs. 1,54,808.

3. After admitting his liability the petitioner issued cheque no. 608138 dated 31.03.2012 of Rs. 22,55,080/-, drawn on Punjab and Sind Bank, Arya Samaj Road, Nehru Ground, NIT, Faridabad in favour of complainant, which on presentation was dishonoured vide memo dated 04.04.2012 for want of sufficient funds. Thereafter, a legal notice dated 10.04.2012 was sent to petitioner through registered post on 16.04.2012 but neither this legal notice was received back nor replied or payment of dishonoured cheque was made.

4. On the complaint, petitioner was ordered to be summoned to face trial and was served with notice of accusation as per provisions of Section 251 Cr.P.C., to which he pleaded not guilty and claimed trial.

5. In support of his case, complainant examined himself as CW-1 and closed evidence. After completion of evidence of complainant, statement of petitioner under Section 313 Cr.P.C. was recorded, wherein he denied allegations levelled against him and stated that he had given 10 blank signed cheques including the cheque in question to complainant as security. The cheque in question bears his signatures but it was not filled in by him.

6. Learned counsel for the petitioner has argued that while convicting the petitioner learned Courts below have failed to look into the statement of complainant that cheques were given to complainant as security, who had admitted that there was no document with him that petitioner is partner with Dhanvir Singh and Bhopal Singh or has ever represented them to be his partne Security cheques given to complainant against delivery of liquor were wrongly utilized towards payment of amount due towards Dhanvir Singh and Bhopal Singh as well. Courts below have not looked into this fact that amount mentioned in the cheque was not due towards petitioner even at the time of presentation of cheque before the bank, as such, very requirement to make out the offence punishable under Section 138 of the Negotiable Instruments Act is missing. The petitioner was not partner with Dhanvir Singh and Bhopal Singh, as such, was not liable to pay the amount as outstanding against them. Learned trial Court has misinterpreted the plea of petitioner about the cheque in question, which was given as security cheque under the impression that at the time of giving of the cheque, amount of Rs. 22,55,080/- was due against the petitioner. The observations of learned trial Court in this regard are not sustainable. Learned trial Court has totally ignored the plea of petitioner that he was not partner with Dhanvir Singh and Bhopal Singh, as such, there was no question of issuing the cheque for their liability. Learned Appellate Court while looking into this aspect has observed that partnership can be oral and has drawn inference from the fact that earlier the payment on account of Dhanvir Singh and Bhopal Singh was being made by the petitioner. Thus vicarious liability has bee