Punjab-Haryana High Court
Gian Chand Saini vs State Of Haryana And Anr on 13 March, 2024
Neutral Citation No:=2024:PHHC:041918
CRR 1054 of 2018 (O&M) 2024:PHHC:041918 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
108 CRR 1054 of 2018 (O&M)
Date of Decision: 13.03.2024
Gian Chand Saini ...Petitioner
Versus
State of Haryana and another ... Respondents
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. Ranjan Lakhanpal, Advocate, for the petitioner.
N.S.SHEKHAWAT, J. (Oral)
CRM 9993 of 2024
1. The applicant/petitioner has filed the present application
with a prayer to recall the order dated 23.08.2023 passed by this
Court, whereby, the case was dismissed for non-prosecution.
2. I have heard learned counsel for the applicant/petitioner
and for the reasons mentioned in the application, the application is
allowed and the main case is restored to its original number.
CRR 1054 of 2018
1. The petitioner has filed the present revision petition
against the impugned judgment dated 22.02.2018 passed by the
Sessions Judge, Kurukshetra, whereby, judgment of conviction and
order of sentence dated 30.06.2016 passed by the Judicial Magistrate
1st Class, Kurukshetra, was upheld and the petitioner was ordered to
be convicted for the offence punishable under Section 138 of the
Negotiable Instruments Act 1881 (hereinafter to be referred as 'the
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Act') and sentenced to undergo rigorous imprisonment for a period of
two years and to pay compensation of Rs. 25,00,000/- to the
complainant under Section 357(2) of the Code of Criminal Code
within a period of two months. He was also ordered to undergo
rigorous imprisonment for a period of two months in the event of non-
payment of compensation amount.
2. A complaint under Section 138 of the Act was filed by
the Haryana State Cooperative Supply and Marketing Federation
Limited (HAFED), Kurukshetra, respondent No. 2 against the present
petitioner by stating that the present petitioner/accused was allotted
the contract of de-husking paddy for Kharif marketing season 2009 by
the respondent No. 2. 27228 quintals 10 kilograms paddy was to be
shelled by him and rice was to be delivered to the Central pool on or
up to 31.3.2010. The time for delivery was then extended to
30.11.2010. After receiving paddy in bulk on or up to 30.11.2010
under the aforesaid contract, petitioner could not deliver rice upto
31.3.2010 and, as such, as per policy of Government and terms
settled, petitioner handed over a post dated cheque bearing
No.080476 of Canara Bank, Kurukshetra to be realised on or after
26.11.2010 for a sum of Rs.25 lacs against over due liability. Receipt
of paddy was acknowledged by him on 24.1.2010. On 31.3.2010,
paddy to the tune of 15154.09 quintals equivalent to 10153.24
quintals rice worth Rs.2,84,03,688.90 paise was due from petitioner,
who could not deliver rice within time allowed originally, extended up
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to 26.11.2010 or thereafter. 8720.55 quintals paddy and other stocks
of carrates, tarpaulins, gunny bags were due from the petitioner, cost
of which was Rs. 1,66,62,293/-. As per terms settled, balance amount
could be recovered from the petitioner by drawing payment from his
bank account through cheque. Accused was asked to return the rice or
its price, upon which he responded that cheque amount be realized
from his bank account. Respondent No. 2 further averred that the
cheque was presented to its banker for realization of Rs.25 lacs on
06.12.2010 and was returned vide memo dated 07.12.2010 on account
of 'insufficient funds'. Petitioner was orally informed and he asked to
re-present the cheque. The cheque was again presented to banker of
petitioner on 14.12.2010 but it bounced for the same reasons, vide
memo dated 15.12.2010. As per promise, cheque was once again
presented to the banker of petitioner on 17.1.2011 but was bounced
vide memo dated 18.1.2011. Notice of demand dated 7.2.2011 was
issued by the respondent No.2 to petitioner through its counsel Shri
Balwant Singh Walia, Advocate but no payment was made. The
registered notice was received back undelivered with the report of
postman dated 19.2.2011. 15 days time allowed under the notice for
payment had since expired and the complaint was presented in time,
within 30 days.
3. Learned counsel for the petitioner contends that both the
Courts clearly failed to appreciate that respondent No. 2 had lodged
one FIR No. 441 dated 01.12.2010 under Sections 406, 420 and
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120-B IPC against the petitioner and others. It was clearly mentioned
in the FIR that the paddy was supplied to the petitioner, but he had not
returned the rice to respondent No. 2 after milling and due to this,
respondent No. 2 had suffered huge financial loss, which includes the
cheque amount also. Consequently, the petitioner could not be
punished twice for the same offence. Still further, there was
arbitration clause in the present case and the arbitration award has
already been challenged by the petitioner before this Court, which is
pending and the petitioner has been wrongly convicted. Learned
counsel for the petitioner further contends that there was no existing
liability and the provisions of Section 138 of the Act had been
wrongly invoked in the present case. Apart from that, the cheque was
given as security by the petitioner and the said fact was also admitted
by respondent No. 2 in the contract Ex.C-14 and the Courts below had
misappreciated the evidence on record. Learned counsel further
contends that since there was no liability on the petitioner to pay the
amount of Rs. 25,00,000/- and the blank signed cheque, i.e., security
cheque had been misused by respondent No. 2, which was proved by
DW1 Sumit Arora, Handwriting and Fingerprint Expert.
4. I have heard learned counsel for the petitioner at length
and perused the record.
5. It has been held by the Hon'ble Supreme Court in the
matter of "Bhaskarrao and others Vs. State of Maharashtra",
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2018 AIR (Supreme Court) 2222; 2018 (5) RCR (Criminal) 228 as
follows:-
"14. As the trial court and High Court, having
appreciated the evidence on record, has come to
diametrically opposite conclusions, mandating herein to
observe certain witness statements which may have an
important bearing in this case. In the processes of
appreciating the evidence at the appellate stage, we
need to keep in mind the views of this court as expressed
in Tota Singh and Anr. v. State of Punjab, 1987(2)
RCR (Criminal) 35 : 1987 CriLJ 974 -
"The High Court has not found in its judgment that the
reasons given by the learned Sessions Judge for
discarding the testimony of PW2 and PW6 were either
unreasonable or perverse. What the High Court has
done is to make an independent reappraisal of the
evidence on its own and to set aside the acquittal merely
on the ground that as a result of such reappreciation, the
High Court was inclined to reach a conclusion different
from the one recorded by the learned Sessions Judge.
This Court has repeatedly pointed out that the mere fact
that the Appellate Court is inclined on a reappreciation
of the evidence to reach a conclusion which is at
variance with the one recorded in the order of acquittal
passed by the Court below will not constitute a valid and
sufficient ground for setting aside the acquittal. The
jurisdiction of the Appellate Court in dealing with an
appeal against an order of acquittal is circumscribed by
the limitation that no interference is to be made with the
order of acquittal unless the approach made by the
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lower Court to the consideration of the evidence in the
case is vitiated by some manifest illegality or the
conclusion recorded by the Court below is such which
could not have been possibly arrived at by any court
acting reasonably and judiciously and is, therefore,
liable to be characterized as perverse. Where two views
are possible on an appraisal of the evidence adduced in
the case and the court below has taken a view which is
plausible one, the Appellate Court cannot legally
interfere with an order of acquittal even if it is of the
opinion that the view taken by the Court below on its
consideration of the evidence is erroneous."
15. In Ramesh Babulal Doshi v. State of Gujarat,
1997(3) RCR (Criminal) 62 : 1996 CriLJ 2867, this
Court observed:
"This Court has repeatedly laid down that the mere fact
that a view other than the one taken by the trial Court
can be legitimately arrived at by the appellate Court on
reappraisal of the evidence cannot constitute a valid and
sufficient ground to interfere with an order of acquittal
unless it comes to the conclusion that the entire
approach of the trial Court in dealing with the evidence
was patently illegal or the conclusions arrived at by it
were wholly untenable. While sitting in judgment over
an acquittal the appellate Court is first required to seek
an answer to the question whether the findings of the
trial Court are palpably wrong, manifestly erroneous or
demonstrably unsustainable. If the appellate court
answers the above question in the negative the order of
acquittal is not to be disturbed."
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6. In fact, there is no substance in the arguments raised by
the learned counsel for the petitioner that once FIR has been
registered against the present petitioner, the respondent No. 2 was not
justified in filing a complaint under Section 138 of the Act against the
present petitioner. In fact, the FIR in the present case was got
registered by respondent No. 2 as the petitioner had cheated HAFED,
respondent No. 2. A false assurance was made by the
petitioner/accused that after de-husking, the rice shall be given by the
petitioner to respondent No. 2. However, the rice was not delivered to
respondent No. 2, which led to the filing of the present complaint.
Even otherwise, the offence under Section 138 of the Act was non
cognizable and could not have been investigated by the police. Still
further, it has been held by this Court as well as Hon'ble Supreme
Court in number of judgments that the pendency of the arbitration
proceedings would be no ground to quash the criminal prosecution. In
fact, the Arbitrator had already passed an award against the petitioner,
which has been challenged by the present petitioner before this Court.
However, the passing of the arbitration award by the Arbitrator in the
present case would further strengthen the case of the present
respondent. Rather, that will clearly show that the cheque was issued
in discharge of the existing liability and separate recovery
proceedings for recovery of amount was clearly maintainable.
7. Apart from that, the trial Court has rightly held that vide
agreement Ex.C-14, the petitioner had undertaken to deliver the
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milled paddy as per the agreed schedule and as per Ex.C-15, he had
received the good quality of paddy to the tune of 27228.10 quintals
and he was supposed to supply the milled rice to the respondent No. 2
in terms of the agreement Ex.C-14. However, the said rice was not
returned after milling and the respondent No.2 had to present the
cheque, which was handed over by the present petitioner in terms of
the agreement Ex.C-14. Even, the testimonies of DW1 Sumit Arora,
Handwriting and Fingerprint Expert was of no use to the petitioner as
he had admitted the terms of the agreement Ex.C-14.
9. From the above referred discussion and the law laid
down by the Hon'ble Supreme Court, it can be safely concluded that
the impugned judgments passed by the Courts below are based on
sound reasons and there does not seem to be any illegality or
perversity in the appreciation of the evidence.
10. Sequally, the revision petition sans merit and is
accordingly ordered to be dismissed.
11. All pending applications, if any, are disposed off,
accordingly.
13.03.2024 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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