Punjab-Haryana High Court
Balram Panday vs State Of Punjab And Another on 19 March, 2024
Author: Gurvinder Singh Gill
Bench: Gurvinder Singh Gill
2024:PHHC:039620
In the High Court for the States of Punjab and Haryana
At Chandigarh
CRR-2875-2023 (O&M)
Date of Decision:-19.3.2024
Balram Panday ... Petitioner
Versus
State of Punjab and another ... Respondents
CORAM: HON'BLE MR. JUSTICE GURVINDER SINGH GILL
Present:- Mr. Nakul Sharma, Advocate for the petitioner.
*****
GURVINDER SINGH GILL, J.(Oral)
1. Petitioner - Balram Panday assails judgment dated 17.11.2023 passed by
learned Additional Sessions Judge, Fatehgarh Sahib, whereby an appeal filed
by the petitioner challenging his conviction recorded by learned Sub
Divisional Judicial Magistrate, Amloh vide judgment dated 1.7.2019 for
offence under Section 138 of Negotiable Instruments Act (hereinafter
referred to as 'the Act'), has been dismissed.
2. Respondent No.2/complainant - Jugal Kishore had instituted complaint
dated 30.5.2016 (Annexure P-1) under Section 138 of the Act against the
petitioner alleging therein that he had advanced a loan of Rs.3 lakhs to the
accused by issuing cheque No.4531026 dated 22.1.2009 from his bank
account maintained with Union Bank of India, Branch Mandi Gobindgarh,
which was duly encashed. The accused had agreed to pay back the same as
and when demanded alongwith interest @ 18% per annum. On 6.11.2013, the
(2) CRR-2875-2023 (O&M)
accused issued a cheque No.706838 dated 6.11.2013 for a part payment of
Rs.50,000/- only. Subsequently, the accused issued another cheque i.e.
cheque No.165632 dated 20.4.2016 for an amount of Rs.7 lakhs to the
complainant from his bank account maintained with HDFC Bank, Branch
Khanna, but upon presentation of the same, it was dishonoured. The
complainant in order to substantiate the allegations himself stepped into the
witness-box and also led documentary evidence. Learned Sub Divisional
Judicial Magistrate, Amloh, upon marshalling the evidence on record held
the accused/petitioner guilty of having committed offence under Section 138
of the Act and accordingly sentenced him to undergo rigorous imprisonment
for 2 years and also awarded compensation to the petitioner to the tune of
Rs.7 lakhs vide judgment dated 1.7.2019. Aggrieved by the same, the
petitioner/accused filed an appeal before the Court of learned Additional
Sessions Judge, Fatehgarh Sahib, but the same was also dismissed vide
judgment datd 17.11.2023, which has been assailed by way of filing the
instant petition.
3. Learned counsel for the petitioner vehemently argued that the complainant
did not lead any convincing and cogent evidence as regards the advancement
of loan to the petitioner and that although the complainant had placed on
record a copy of an entry from his own bank account showing some
transaction of Rs.3 lakhs, but it cannot said with certainty that the said
amount was the same amount, which had allegedly been given by the
accused to the complainant. Learned counsel further submitted that the
complaint otherwise ought to have been dismissed for the reason that the
complainant had not chosen to array the company/firm as an accused, which
(3) CRR-2875-2023 (O&M)
had issued the cheque in question. It has been submitted that while the
cheque in question had been issued from the bank account of his firm i.e.
'M/s J.K. Industries', the complainant has not chosen to implead the said
firm as an accused though in terms of provisions of Section 141 of the Act,
the said firm would also be required to be arrayed as an accused, so as to
saddle its proprietor/directors with responsibility.
4. This Court has considered the aforesaid submissions.
5. As far as the contention of the petitioner regarding the complainant not
having led sufficient evidence before the Trial Court, learned counsel for the
petitioner has today referred to a copy of the bank account statement
produced before the Trial Court as Exhibit C-1. A photocopy of the same has
been furnished to this Court, which is taken on record.
6. There is an entry dated 27.1.2009 with respect to cheque No.453126 in
respect of withdrawal of an amount of Rs.3 lakhs. The complainant in his
examination-in-chief categorically deposed as regards his having advanced a
loan of Rs.3 lakhs to the accused by way of the cheque in question. The
relevant in para No.2 of the affidavit of CW-1 tendered towards examination-
in-chief, as has been annexed as Annexure P-2 with the present petition, is
extracted hereinunder:
"That the accused with a view to meet his financial needs,
requested the complainant to advance a loan of Rs.3,00,000/-
(Rs. Three Lac Only) and conceding his requests, the
complainant advanced the accused, a sum of Rs.3,00,000/- (Rs.
Three Lac Only) through Cheque No.4531026 Dated
22.01.2009 of Union Bank of India, Mandi Gobindgarh from
(4) CRR-2875-2023 (O&M)
the account of the complainant and the same was duly encashed
by you from the account of the complainant. "
7. The aforesaid deposition shows that the complainant in unambiguous terms
deposed regarding the amount in question having been advanced to the
accused by way of the aforesaid cheque. In the same very examination-in-
chief, the copy of the statement of bank account of the complainant was
exhibited as Ex.C-1. A perusal of the cross-examination of the complainant
conducted on behalf of the accused, which is a fairly lengthy cross-
examination and has been annexed as Annexure P-2 with the present petition,
would show that not even a single word had been put to the complainant as
regards the aforesaid cheque number. The accused did not confront the
complainant with regard to the aforesaid entry dated 27.1.2009 pertaining to
cheque No.4531026 dated 22.1.2009 for an amount of Rs.3 lakhs.
8. Under these circumstances, this Court has no hesitation in holding that the
complainant has led sufficient evidence to establish that he had advanced a
loan of Rs.3 lakhs to the accused. Consequently, the accused having issued a
cheque towards part payment of the said amount and the same having been
dishonoured, it can safely be said that the cheque in question, which has been
dishonoured, had been issued for discharge of legally enforceable liability.
9. As regards, the contention of the petitioner regarding the complainant not
having arrayed the firm as a party i.e. M/s J.K. Industries, this Court finds
that neither it is the case of the petitioner that the amount in question had
been advanced as loan to the firm of the petitioner nor the cross-examination
of the complainant suggest any such stand of the petitioner. Still further the
firm in question is a sole proprietorship firm of the accused and, as such, it
(5) CRR-2875-2023 (O&M)
cannot be said that the petitioner would not be responsible for the affairs of
the said firm. The Trial Court as well as the Lower Appellate Court have
taken into account all the relevant aspects on the basis of the evidence led by
the parties and have correctly reached at the conclusion as regards the guilt
of the petitioner. This Court does not find any valid ground to interfere with
the findings as recorded by the Trial Court and as affirmed by the Lower
Appellate Court. Finding no merit in the present petition and the same is
hereby dismissed.
19.3.2024 ( Gurvinder Singh Gill )
Pankaj Judge
Whether speaking /reasoned Yes / No
Whether Reportable Yes / No
