Punjab-Haryana High Court
Jagdev Kumar And Anr vs State Of Haryana And Anr on 13 March, 2024
Neutral Citation No:=2024:PHHC:038051
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253-1 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Reserved On: 11.03.2024
Pronounced On: 13.03.2024
1. CRR-4293-2017
JAGDEV KUMAR AND ANR.
...PETITIONERS
V/S
STATE OF HARYANA AND ANR.
...RESPONDENTS
2. CRR-4298-2017
JAGDEV KUMAR AND ANR.
....PETITIONERS
V/S
STATE OF HARYANA AND ANR.
...RESPONDENTS
3. CRR-4299-2017
JAGDEV KUMAR AND ANR.
...PETITIONERS
VERSUS
STATE OF HARYANA AND ANR.
...RESPONDENTS
CORAM: HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. S.S. Dinarpur, Advocate with
Mr. Aman Godara, Advocate and
Mr. Rohit Singh, Advocate for the petitioner(s).
Mr. Vikas Bhardwaj, AAG Haryana.
Mr. D.K. Sharma, Advocate for respondent No(s).2.
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CRR-4293-2017& 2
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HARPREET SINGH BRAR, J.
This common judgment of mine shall dispose of above captioned
three criminal revisions as they arise out of the same factual background. For
the sake of brevity, facts are borrowed from CRR-4293 of 2017 titled as
Jagdev Kumar and another vs. State of Haryana and another.
2. The above-noted revision petitions have been preferred by the
petitioners-accused, against the judgment of conviction dated 10.07.2015 and
the subsequent order of sentence dated 13.07.2015, passed by learned Judicial
Magistrate Ist Class, Yamuna Nagar, in the respective complaints filed under
Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as
'NI Act') as well as the judgment dated 27.10.2017, passed by learned Sessions
Judge, Yamuna Nagar, whereby, the appeal filed by the petitioners was
dismissed. The petitioners were sentenced as under: -
Under Section R.I. for 1 year with compensation of Rs.4,50,000/- to
138 NI Act be paid to the complainant within two months. Further
R.I. of 3 months in case of default of payment of
compensation within said period.
(consecutive sentence in three complaints by the trial
Court but modified by lower Appellate Court to run
concurrently)
FACTUAL MATRIX
3. Allegedly, petitioner No.1-Jagdev Kumar is the proprietor of
petitioner No.2-M/s S.R. Engineering Industries, wherein, respondent No.2-
complainant-Surinder Singh was also a partner and vide dissolution deed dated
10.05.2012, after settlement of accounts, respondent No.2 retired from the firm
after execution of a dissolution deed and petitioner No.1 became the sole
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proprietor. As per the private agreement also dated 10.05.2012, petitioner No.1
agreed to pay an amount of Rs.22,00,000/- to respondent no.2, qua his share. In
order to discharge the aforesaid liability, petitioner No.1 issued a cheque
bearing No.582470 dated 10.05.2013 for Rs.4,00,000/- along with two other
cheques of the same amount and similar date, in favour of respondent no.2.
When presented for encashment, the said cheque was dishonoured vide memo
dated 01.06.2013 with reason 'Payment Stopped by Drawer'. Thereupon,
respondent No.2-complainant served a legal notice upon petitioner No.1 calling
upon him to make the payment qua the settlement amount of Rs.22,00,000/-,
but to no avail.
4. Aggrieved by the same, respondent No.2 filed three respective
complaints under Section 138 of NI Act, including complaint no.1786 of 2013
in the present case, which were disposed of by the learned trial Court, by way
of judgment dated 10.07.2015, wherein, petitioner No.1, being the sole
proprietor of accused firm-petitioner No.2, was convicted under Section 138 NI
Act and ordered to undergo sentence as mentioned above.
5. Aggrieved by the said judgment and order, the petitioners filed an
appeal before the learned lower Appellate Court, wherein, the said Court
upheld the judgment of conviction, but modified the order of sentence to the
extent that substantive sentence of imprisonment was modified to run
concurrently with the sentence awarded in other complaints bearing Nos.1788
of 2013 and 1780 of 2013.
6. Thereafter, the petitioners-accused aggrieved by the conviction
and sentence have approached this Court by way of filing revisions bearing
Nos.CRR-4293, 4298 & 4299 of 2017, against their conviction, whereas, the
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complainant Surinder Kumar has approached this Court in case bearing CRR
No.2351 of 2018, praying for enhancement of sentence. The sentence of
accused Jagdev Kumar was suspended by this Court, pending the disposal of
the present revision petitions vide order dated 14.12.2017.
CONTENTIONS
7. Learned counsel for the petitioners inter alia contends that there is
not an iota of evidence to prove that the cheques in question were issued by the
petitioner No.1, in order to discharge any legally enforceable debt. It is further
submitted that respondent No.2-complainant has himself taken a categorical
stand that the firm was dissolved on 10.05.2012 and the cheques in question
are dated 10.05.2013, i.e., when the accused firm 'M/s S.R Engineering
Industries' was not in existence as a partnership firm, thereby, making the fact
that the complainant knowingly accepted the said cheques unpalatable. He
further submits that the complainant has categorically admitted that the
petitioner No.1-Jagdev Kumar had personal liability towards him, but he
somehow accepted cheques issued under the name of the firm, which were
signed by petitioner No.1, with stamp stating him to be a partner.
8. Learned counsel for the petitioners further contends that
respondent no.2-complainant himself admitted in his cross-examination that he
has no documentary evidence to show that he invested Rs.27,00,000/- in the
said firm, as alleged by him. As admitted by the complainant himself, neither
did he show any investment of the aforesaid amount in his income tax return,
nor he maintained any account books qua the same and hence, the complainant
has miserably failed to show if there is any legally enforceable liability on the
part of the petitioners-accused. He further submits that since the alleged
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cheques in question were issued by petitioner No.1, as partner of the said firm
and not as sole proprietor, he could not have been held liable under Section 138
of the NI Act and in order to support this argument, he places reliance on the
judgment rendered in Mukesh Raoji Navadhare vs. Ajit Bhaskar Kasbekar
and Anr., 2010(5) R.C.R(Crl.) 195.
9. Per contra, learned counsel for respondent No.2-complainant
submits that the petitioners have been convicted and sentenced by the learned
Courts below after due appreciation of the evidence on record and all the pleas
taken by the learned counsel for the petitioners have already been dealt with by
the said Courts. He further submits that petitioner no.1 has categorically
admitted his signatures on the cheques in question and thus, the presumption
envisaged in Section 118 of the NI Act can legally be inferred that the said
cheques were drawn for discharge of an outstanding debt and places reliance
on the judgments rendered in Sampelly Satyanarayana Rao vs. Indian
Renewable Energy Development Agency Limited, 2016(4) R.C.R(Civil) 487;
Vishwanath Jha vs. State of Haryana and Another, 2018(4) R.C.R(Crl.) 39;
Manmohan Singh vs. Daljit Singh Chadha, 2019(4) R.C.R(Crl.) 657; Shakir
vs. Sanjay Sharma & Another, 2023(2) R.C.R(Crl.) 31.
10. Learned state counsel affirms that the impugned judgments of
conviction and order of sentence have been passed after complete appreciation
of the evidence on record and thus, do not warrant any interference by this
Court. He further places on record the custody certificate dated 07.03.2024 of
petitioner No.1-Jagdev Kumar and submits that he has undergone 01 month
and 19 days of custody.
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ANALYSIS AND OBSERVATION
11. Having heard the learned counsel for the parties and after perusing
the paper-book with their able assistance, it is manifestly clear that there is a
specific claim of the complainant that he had contributed an amount of Rs.27
lakhs in the above said partnership firm, which was earlier being run with
petitioner no.1-accused Jagdish Kumar. Admittedly, the complainant has failed
miserably to bring on record any document of accounts to show that there had
ever been any such contribution of Rs.27 lakhs made by him. Another
important fact worth noting is that while serving the legal notice upon the
accused, the amount of Rs.22 lakhs has been claimed as liability outstanding
against the accused. At the same time, the complainant has taken a specific
stand that there were three cheques dated 10.05.2013 of Rs.4 lakhs each, issued
by the accused/petitioners, in favour of the complainant but he has failed to
explain that if there was a liability of Rs.22 lakhs of the petitioners/accused
towards the complainant then what compelled the complainant to accept the
cheques in question amounting to Rs.12 lakhs in total.
12. There are two documents on the record each dated 10.05.2012.
One of which is the dissolution deed (Ex.D1)duly admitted by the complainant
as well as his witnesses and another one is the private agreement between the
complainant and the accused which has been relied upon by the complainant.
In the said dissolution deed, the settlement amount has been mentioned to the
tune of Rs.50,000/- but the amount of Rs.27,00,000/- or Rs.22,00,000/-
nowhere finds mention. Interestingly, the aforesaid private agreement has been
denied by the accused to have been executed by him and the complainant has
been unable to bring the original of the same on the record. It certainly defeats
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the said private agreement (Ex.P6) which cannot be relied upon in any manner.
However, the said dissolution deed (Ex.D1) does not find mention in the legal
notice served upon the accused by the counsel of the complainant or the
respective complaints filed by the complainant. There is a material
concealment on the part of the complainant in regard to the said dissolution
deed. A close scrutiny of the said deed shows that there is no mention of any
amount of Rs.27 lakhs or Rs.22 lakhs as alleged to have been invested by the
complainant in the said firm. It is beyond imagination that a person having
right to recover an amount ofRs.22,00,000/- would not even mention his right
to recover the said amount in the dissolution deed which is a relevant document
of the firm.
13. Another important fact evident from the record is that as per CW1
Lakhwinder Singh who is the brother of the complainant, the cheques in question
were handed over to him by the accused at the time of execution of the alleged
agreement dated 10.05.2012 qua which a compromise was reached and the
accounts were settled and that he handed over the said cheques to the complainant
on 10.05.2013. The aforesaid agreement dated 10.05.2012 which has been relied
upon by the complainant has been placed on record in form of a carbon copy, but
no such document in original has come on the record. Further, there has never
been any application moved by the complainant before the trial court to seek
permission to prove the said agreement by way of secondary evidence.
14. Once there was a dispute between the complainant and the
accused who were admittedly earlier the partner in the above said firm and the
same was to be settled then it could not be without writing in an adequate
manner. The complainant has admitted that two cheques of 1,00,00 each, one
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dated 15.12.12 and the other dated 02.02.2013 were issued by the accused in
favour of the complainant but neither there is any reference of encashment of
the said two checks in the legal notice served upon the accused nor the same is
reflected anywhere in the complaint. Moreover, the aforesaid cheques have
been signed by the accused Jagdev Kumar as a proprietor of the firm, unlike
the cheques in question, leading this Court to draw adverse inference against
the stand taken by the complainant.
15. The plea taken by the learned counsel for respondent no.2-
complainant that signatures have been admitted by the accused on the cheques
in question and therefore, the presumption envisaged in Section 118 of the NI
Act can legally be inferred that the said cheques were drawn for discharge of
an outstanding debt can only be considered once a legally enforceable debt or
liability is established. But a perusal of the dissolution deed shows that no such
debt or liability as alleged by the complainant was outstanding against the
accused. Further, the material brought on record by the accused Jagdev Kumar
is sufficient to support his contention that the cheques in question were lost in
due course leading him to request the bank to stop the payment of the said
cheques. The aforesaid contention further stands corroborated from the fact
that a DDR dated 25.04.2013 was lodged by the accused before the police,
wherein, it was mentioned that the cheques in question along with multiple
other cheques were lost by him.
CONCLUSION
16. In view of the above discussion and after giving due consideration
to the facts and circumstances of the case at hand, this Court finds sufficient
cause to interfere with the judgment of conviction dated 10.07.2015 and the
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subsequent order of sentence dated 13.07.2015 passed by learned Judicial
Magistrate Ist Class, Yamuna Nagar as well as the judgment dated 27.10.2017
passed by learned Sessions Judge, Yamuna Nagar.
17. Hence, the present revision petitions are allowed and the above-
said impugned judgments and order are set aside. The petitioners-accused are
hereby acquitted of the charges framed against them in the present cases and
the bail bonds and surety bonds stand discharged.
18. Pending miscellaneous application(s), if any, shall also stand
disposed of accordingly.
(HARPREET SINGH BRAR)
March 13, 2024 JUDGE
manisha
(i) Whether speaking/reasoned Yes/No
(ii) Whether reportable Yes/No
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