IMPORTANT POINT
Dishonour of cheque – Accused as a guarantor is legally bound to pay money to complainant when vendor had made default.

JUDGMENT (ORAL)

Sandeep Sharma, J.—Instant criminal revision petition filed under S.397 read with S.401 CrPC is directed against judgment dated 27.5.2016 passed by learned Sessions Judge, Bilaspur, Himachal Pradesh in Crl. Appeal No. 05/10 of 2015, affirming the judgment of conviction and sentence dated 19.5.2015 passed by learned Judicial Magistrate 1st Class, Court No.2, Ghumarwin, District Bilaspur, Himachal Pradesh in Cr. Case No. 26/2 of 2012, whereby learned trial Court, while holding petitioneraccused (herein after, ‘accused’) guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, ‘Act’) convicted and sentenced him to undergo simple imprisonment for a period of one year and to pay a compensation of Rs.2.00 Lakh to the respondent-complainant (hereinafter, ‘complainant’).

2. Precisely, the facts of the case as emerge from the record are that complainant, instituted a complaint under S.138 of the Act in the court of learned Judicial Magistrate 1st Class, Court No.2, Ghumarwin, District Bilaspur, Himachal Pradesh, alleging therein that one Smt. Brahmi Devi widow of late Rupa Ram, executed an agreement to sell in her favour qua land measuring 1-6 Bigha for a total sale consideration of Rs.2.00 Lakh and in furtherance of said agreement, complainant paid a sum of Rs.2.00 Lakh to the above named Brahmi Devi. However later-on it transpired that Brahmi Devi had already sold her entire land to someone else and as such, matter came to be reported to the Police. Smt. Brahmi Devi alongwith accused Pawan Kumar and his real brother Ram Rattan requested the complainant not to report the matter to the Police and accused executed an agreement in favour of the complainant undertaking to pay Rs.2.00 Lakh to the complainant within a period of one month. However, the fact remains that the accused failed to pay aforesaid amount within the stipulated period in compliance to the affidavit sworn by him. Thereafter, matter came to be reported to the Police and accused issued cheque bearing No. 169299 dated 25.8.2012 (Ext. C-3) drawn on State Bank of Patiala, Morsinghi Branch, amounting to Rs.2.00 Lakh, in favour of the complainant but, on presentation, said cheque was dishonoured on account of insufficient funds in the account of the accused. Complainant after having received memo from the Bank concerned, served a legal notice to the accused calling upon him to make good the payment within the time stipulated in the notice but since he failed to make payment within the time frame stipulated in the notice, complainant was compelled to initiate proceedings against the accused under S.138 of the Act in the competent Court of law.

3. By way of evidence, complainant successfully proved on record issuance of cheque by accused and thereafter its return by the Bank concerned due to insufficient funds in the account of the accused.

4. To the contrary, accused, in his statement under S.313 CrPC, denied the case of the complainant in toto however, despite opportunity, he did not lead any evidence.

5. Learned trial Court, on the basis of the evidence led on record by the complainant, held accused guilty of having committed offence punishable under S.138 of the Act and accordingly, convicted and sentenced the accused as per description given above.

6. Being aggrieved and dissatisfied with aforesaid judgment of conviction and sentence, accused preferred an appeal in the court of learned Sessions Judge, Bilaspur, who vide judgment dated 22.5.2016, dismissed the same, as a result of which, judgment of conviction and sentence passed by learned trial Court came to be upheld. In the aforesaid background, accused has approached this Court in the instant proceedings, seeking therein his acquittal after setting aside judgments of conviction and sentence passed by learned Courts below.

7. Before ascertaining the correctness of the impugned judgments of conviction and sentence passed by learned Courts below, it may be not