Punjab-Haryana High Court
A.K.Soni And Another vs Darshan Lal (Supra) on 8 January, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No.610-SBA of 1997 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No.610-SBA of 1997
Date of Decision: 8 - 1 - 2010
A.K.Soni and another .....Appellants
v.
Pawittar Singh and another .....Respondents
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.S.D.Bansal, Advocate
for the appellants.
Mr.Arun Jindal, Advocate
for respondent No.1.
Mr.Mehardeep Singh, DAG, Punjab.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Partners of Soni Coal Company preferred Criminal Complaint No.29 of 1990. They averred in the complaint that the accused-respondent Pawittar Singh had issued three cheques, the detail of which is as under:-
Cheque No. Date Exhibit Amount
608714 10.7.1990 Ex.P3 Rs.10,000/-
608712 30.5.1990 Ex.P1 Rs.20,000/-
608713 20.6.1990 Ex.P2 Rs.25,000/-
These cheques were presented. Cheque No.608714 amounting to
Rs.10,000/- was returned on 11.7.1990, whereas other two cheques were Criminal Appeal No.610-SBA of 1997 [2] returned on 10.7.1990. Complainant had issued a notice Ex.P6 on 17.7.1990.
Complainant led preliminary evidence and the accused were summoned to stand trial. After the complainant had led his evidence, the Court of Judicial Magistrate Ist Class, Kharar convicted accused-respondent Pawittar Singh to undergo rigorous imprisonment for three months under Section 138 of the Negotiable Instruments Act. The accused-respondent was also made liable to pay a fine of Rs.1,000/-. In default of payment of fine, he was to undergo further rigorous imprisonment for one month. Aggrieved against his conviction and sentence, Pawittar Singh accused- respondent had filed an appeal. The Appellate Court relied upon a judgment of this Court rendered in Gulshan Rai v. Darshan Lal, 1995(1) Civil Court Cases 55 to hold that cheques were also presented and notice was not given from the date, they were returned. Re-presentation of the cheques and their return cannot be construed as a point for commencement of limitation. The observations which led to acquittal of the accused- respondent are mentioned in para 9 of the impugned judgment and the same read as under:-
"9. I find that there is force in the first contention of the learned counsel for the appellant/accused. Jatinder Kumar Soni while appearing as PW-4 admitted in his cross-examination that two cheques were presented to the bank twice and the last cheque was presented once. He further stated that he did not remember the difference of presenting the cheques to the banks for the first time and the second time. Even A.K.Soni PW-1 in his cross-examination admitted that cheque Ex.P-1 was sent for Criminal Appeal No.610-SBA of 1997 [3] clearance twice when the cheque came back no notice was issued. When the cheque came back second time then notice was issued. The cheque Ex.P-2 was also presented twice for clearance. Cheque Ex.P-3 was presented only once. Cheque Ex.P-1 and P-2 placed on the record also show that those were sent to the bank twice. Admittedly o notice was issued when the cheques Ex.P-1 and P-2 were dishonored for the first time. When such are the circumstances, the accused deserves to be acquitted. To this view I find support from the authority Gulshan Rai Vs. Darshan Lal (Supra), where it was held to the following effect :
"Counsel for the petitioner in support of her arguments, has relied upon the judgment in M/S. K.P.V.Textiles and another v. M/S Malook Chand Naresh Chand 1992(2) RCR 425 and Kumaresean V. Ameerapa 1991(3) RCR
172. In these judgments it has been held by this court that no prosecution can be lodged against the accused on the basis of cheques again presented, but not honoured as the complainant could not have second cause of action on the same cheque. No judgment to the contrary has been cited by the counsel for the respondent. In view of the aforesaid judgments, this petition deserves to be accepted."
To the same effect is the law laid down in the authorities M/S K.P.V. Textiles and another Vs. M/S Malook Chand Naresh (Supra), M/S. Rita Khanna Vs. M/S R.S. Traders (Supra) and S.K.Behal Vs. M/S Berlina Constructions House (Supra). All these authorities are of our own High Court and those are binding on this court."
Criminal Appeal No.610-SBA of 1997 [4]Mr.S.D.Bansal appearing for the complainant-appellants has relied upon a judgment of Hon'ble Apex Court in Sadanandan Bhadran v. Madhavan Sunil Kumar, 1998(4) RCR (Criminal) 90 to contend that on each presentation of cheque which was dishonoured, a fresh right accrues in favour of the payee. Para 10 of the judgment read as under:-
"10. Now, the question is how the apparently conflicting provisions of the Act, one enabling the payee to repeatedly present the cheque and the other giving him only one opportunity to file a complaint for its dishonour, and that too within one month from the date the cause of action arises, can be reconciled. Having given our anxious consideration to this question, we are of the opinion that the above two provisions can be harmonised, with the interpretation that on each presentation of the cheque and its dishonour a fresh right - and not cause of action - accrues in his favour. He may, therefore, without taking pre-emptory action in exercise of his such right under clause (b) of Section 138 he forfeits such right for in case of failure of the drawer to pay the money within the stipulated time he would be liable for the offence and the cause of action for filing the complaint will arise. Needless to say, the period of one month for filing the complaint will be reckoned from the day immediately following the day on which the period of fifteen days from the date of the receipt of the notice by the drawer, expires."
Thus, it is apparent that cheque can be presented again and again and notice can be issued once. In the present case, no notice was issued when the Criminal Appeal No.610-SBA of 1997 [5] cheques were issued for the first time. It was on the presentation of the cheques second time that notice was issued. The above said view has been further followed by this Court in the case of M/s A.K.Desai & Co. and others v. State of Punjab and another, 2008(2) RCR (Criminal) 504.
Mr.Arun Jindal appearing for the accused-respondent has stated that the accused-respondent has not been acquitted on the sole ground but there are many other grounds which have been taken into consideration by the learned Additional Sessions Judge on which acquittal of the respondent has been recorded. He further stated that he has enough material to show from the evidence that notice was also issued when the cheques were presented for the first time. Mr.Jindal submit that for re-appreciation of evidence, matter can be remanded to the lower Appellate Court. To this submission made by counsel for the accused-respondent, counsel for the complainant-appellants has no objection.
Taking into consideration that counsel for the complainant- appellants and the accused-respondent are in agreement that matter can be remanded back, the impugned order passed by the lower Appellate Court is set aside and the matter is remanded back to the lower Appellate Court to decide the appeal afresh. However, anything observed in this order may not be construed as an expression of opinion while deciding the appeal afresh. The lower Appellate Court taking into consideration the entire evidence, facts and the law to be relied by the parties may decide the matter in accordance with the provisions of law.
It is stated that during the pendency of the appeal, a Court of Additional Sessions Judge has been created at Mohali and the jurisdiction will vest in Additional Sessions Judge at Mohali to decide the appeal. Criminal Appeal No.610-SBA of 1997 [6] Accordingly, the records of this case be sent to Additional Sessions Judge, Mohali to decide the appeal afresh within six months from the date of receipt of certified copy of this order. The parties shall cause appearance before the Additional Sessions Judge, Mohali on 1.2.2010.
( KANWALJIT SINGH AHLUWALIA ) January 8, 2010. JUDGE RC