{"id":195232,"date":"2009-08-06T00:00:00","date_gmt":"2009-08-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/william-sidhu-aged-about-44-years-vs-tavinder-kumar-son-of-sh-on-6-august-2009"},"modified":"2017-09-14T04:35:35","modified_gmt":"2017-09-13T23:05:35","slug":"william-sidhu-aged-about-44-years-vs-tavinder-kumar-son-of-sh-on-6-august-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/william-sidhu-aged-about-44-years-vs-tavinder-kumar-son-of-sh-on-6-august-2009","title":{"rendered":"William Sidhu Aged About 44 Years vs Tavinder Kumar Son Of Sh. … on 6 August, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
William Sidhu Aged About 44 Years vs Tavinder Kumar Son Of Sh. … on 6 August, 2009<\/div>\n
            IN THE HIGH COURT OF PUNJAB AND HARYANA\n                      AT CHANDIGARH\n\n\n                             Criminal Revision No. 1576 of 2009 (O\/M).\n                                Date of Decision : August 06, 2009.\n\n\nWilliam Sidhu aged about 44 years, son of Sh. Gurdial Singh, resident of H.\nNo. 248, Urban Estate, Phase-I, Patiala, (Presently confined at Central Jail,\nPatiala).\n                                                            ...... Petitioner .\n\n                                   Versus.\n\n\nTavinder Kumar son of Sh. Tarlochan Lal, resident of H. No. 461, Jattan\nWala Chowntra, Patiala.\n                                                      ..... Respondent .\n\n\nCORAM:HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH.\n\n\nPresent:-    Mr. A.S. Jattana, Advocate,\n             for the petitioner .\n\n             Mr. S.P.S. Sidhu, Advocate,\n             for the respondent.\n\n\nAUGUSTINE GEORGE MASIH, J.\n<\/pre>\n
             The petitioner-accused having been convicted under Section<\/p>\n
138 of the Negotiable Instruments Act, 1881, (hereinafter referred to as<\/p>\n
“the Act”) and sentenced to undergo imprisonment for a period of one year<\/p>\n
and to pay a fine of Rs. 1,000\/- in default of payment thereof to further<\/p>\n
undergo rigorous imprisonment for one month by the learned Judicial<\/p>\n
Magistrate 1st Class, Patiala, vide order dated 09.01.2007 and thereafter the<\/p>\n
appeal preferred by the petitioner-accused against the said order of<\/p>\n
conviction and sentence having been dismissed by the learned Additional
\n Crl. Revision No. 1576 of 2009.                                         -2-<\/span><\/p>\n
Sessions Judge, Patiala, vide judgment dated 27.05.2009, has filed the<\/p>\n
present Criminal Revision Petition, challenging the conviction and sentence.<\/p>\n
            Counsel for the petitioner has contended that the Courts below<\/p>\n
have not appreciated the evidence, which has been brought on record by the<\/p>\n
petitioner-accused, wherein it has been specifically stated and proved by him<\/p>\n
that the cheques, which have been dishonoured, although, have been signed<\/p>\n
by the petitioner-accused, but were filled up in the handwriting of<\/p>\n
respondent-complainant, therefore, cannot be said to be a valid tender under<\/p>\n
the provisions of Section 138 of the Negotiable Instruments Act, 1881,<\/p>\n
(hereinafter referred to as “the Act”). He submits that blank cheques were<\/p>\n
handed over to the respondent-complainant as 10% security amount of<\/p>\n
compensation to make payment to the respondent-complainant for getting<\/p>\n
the compensation to the petitioner-accused for the plot of 1000 sq. yds.<\/p>\n
situated at village Baran, which was in the name of Ms. Gurparkash Kaur<\/p>\n
Sidhu (deceased sister of the petitioner-accused), and subsequently acquired<\/p>\n
by P.U.D.A. He on this basis submits that the cheques having not been<\/p>\n
drawn by the petitioner-accused, which is the requirement of Section 138 of<\/p>\n
the Act, the said cheques could not be made the basis for filing a complaint<\/p>\n
under Section 138 of the Act. He relies upon the judgment of Andhra<\/p>\n
Pradesh High Court in the case of Avon Organics Limited Versus Poineer<\/p>\n
Products Limited and others, 2004 (2) Civil Court Cases 579 and the<\/p>\n
judgment of Kerala High Court in the case of Gopan Versus Tonny<\/p>\n
Verghese, 2008 (1) Civil Court Cases, 642, in support of his contentions.<\/p>\n
            The second contention which has been raised is that the account<\/p>\n
having been closed and the respondent-complainant being aware of the said<\/p>\n
fact could not have presented the cheques to the Bank and, therefore, could
\n Crl. Revision No. 1576 of 2009.                                           -3-<\/span><\/p>\n
not make the petitioner-accused liable under Section 138 of the Act. It is his<\/p>\n
contention that as per Section 138 of the Act, the cheque, which has been<\/p>\n
drawn by a person, should be of an account maintained by him with a Bank<\/p>\n
for payment of any amount of money. Since the account had already been<\/p>\n
closed and that is the memo, which has been issued by the Bank, he cannot<\/p>\n
be held guilty under the provisions of Section 138 of the Act. For this<\/p>\n
contention, he relies upon the judgment of Hon’ble the Supreme Court in the<\/p>\n
case of Joseph Versus Philip Joseph 2001(1) Civil Court Cases, 220<\/p>\n
(Kerala).\n<\/p>\n
            It is further the contention of counsel for the petitioner that the<\/p>\n
presumption under Section 139 of the Act is not absolute, but rebuttable on<\/p>\n
the part of petitioner-accused. The petitioner has taken a stand that the<\/p>\n
cheques in question were issued as security and not in discharge of any debt<\/p>\n
or other liability, therefore, the conviction and sentence of the petitioner-<\/p>\n
accused cannot be sustained. He relies upon the judgments of Hon’ble the<\/p>\n
Supreme Court namely John K. John Versus Tom Verghese and another,<\/p>\n
2007 (4) Civil Court Cases, 690, and K. Parkashan Versus P.K. Surenderan,<\/p>\n
2007 (4) Civil Court Cases, 713 (S.C.).\n<\/p>\n
            On the other hand counsel for the respondent-complainant<\/p>\n
submits that it has not been proved on record that the cheques have been<\/p>\n
filled in by the respondent-complainant and in any case even if the said<\/p>\n
cheques have been filled in by the respondent-complainant, the signatures on<\/p>\n
the cheques have not been denied by the petitioner-accused and, thus, the<\/p>\n
cheques are valid tender under the Act, and the petitioner-accused cannot<\/p>\n
disown his liability merely because the cheques have not been filled in by<\/p>\n
the petitioner-accused himself. As regards the contention of counsel for the
\n Crl. Revision No. 1576 of 2009.                                           -4-<\/span><\/p>\n
petitioner-accused that the account was closed and therefore, the cheques,<\/p>\n
which have been issued by the petitioner-accused would not come within the<\/p>\n
ambit of Section 138 of the Act. He submits that nothing has come on<\/p>\n
record, which would show that the date on which the cheques were issued,<\/p>\n
the account had already stood closed.       He further submits that if this<\/p>\n
contention is accepted then the purpose for which the amendment has been<\/p>\n
brought about by the Legislature, would stand nullified as the credibility of<\/p>\n
the instrument would always be in question and a person who issues a<\/p>\n
cheque would always with a malafide intention issue the said cheques,<\/p>\n
which is not valid tender and circumvent the provisions of Section 138 of<\/p>\n
the Act. As regards the contention that the presumption under Section 139 of<\/p>\n
the Act is rebuttable, he contends that the onus was upon the petitioner-<\/p>\n
accused, which he has failed to discharge that the cheques were issued not<\/p>\n
for any debt or liability, which he has failed to discharge. On the other hand,<\/p>\n
it has been proved by the respondent-complainant by producing evidence in<\/p>\n
the form of his Bank Account and statement, where withdrawal of the<\/p>\n
amount has been shown before the respective dates on which the amount is<\/p>\n
alleged to have been given to the petitioner-accused by way of friendly loan.<\/p>\n
On this basis, counsel for the respondent-complainant submits that the<\/p>\n
judgments passed by the Courts below are fully justified and do not call for<\/p>\n
any interference by this Court.\n<\/p>\n
             I have heard counsel for the parties and with their able<\/p>\n
assistance have gone through the records of the case.\n<\/p>\n
             The position, which stands culled out from the pleadings of the<\/p>\n
parties, is that the petitioner-accused requested the respondent-complainant<\/p>\n
to advance a friendly loan of Rs. 2 lakhs to him for business purposes with
\n Crl. Revision No. 1576 of 2009.                                         -5-<\/span><\/p>\n
an assurance to return the same within a period of three months.        The<\/p>\n
respondent-complainant withdrew the said amount from his Bank Account<\/p>\n
on 03.03.2004 and the same was advanced to the petitioner-accused on<\/p>\n
05.03.2004.   The petitioner-accused in order to discharge this liability,<\/p>\n
issued a cheque No. 255325 dated 05.03.2004 for an amount of Rs. 2 lakhs,<\/p>\n
drawn on Bank of Punjab Limited, Branch Chhoti Baradari, Patiala, from his<\/p>\n
account No. 14725066 in favour of the respondent-complainant. Thereafter,<\/p>\n
on 20.04.2004, the petitioner-accused again approached the respondent-<\/p>\n
complainant for a loan of Rs. 1.50 lakhs for the purpose of business and in<\/p>\n
discharge of the said liability, the petitioner-accused issued a cheque No.<\/p>\n
02000711 dated 04.06.2004 for an amount of Rs. 1.50 lakhs, drawn on Bank<\/p>\n
of Punjab Limited, Branch Chhotti Baradari, Patiala, in favour of the<\/p>\n
respondent-complainant. This amount of Rs. 1.50 lakhs, the respondent-<\/p>\n
complainant has shown to have been withdrawn by him from his bank<\/p>\n
account on 31.03.2004. In May,2004, the respondent-complainant requested<\/p>\n
the petitioner-accused for return of Rs. 3.50 lakhs to which the petitioner-<\/p>\n
accused responded by asking the respondent-complainant to present the<\/p>\n
cheques issued by him.       On 29.05.2004, the respondent-complainant<\/p>\n
presented the cheque dated 05.03.2004 of Rs. 2 lakhs with the drawee Bank.<\/p>\n
The said cheque was returned by the Bank with remarks “Account Closed”,<\/p>\n
vide memo dated 29.05.2004. This fact was brought to the notice of the<\/p>\n
petitioner-accused, who assured that the total payment of Rs. 3.50 lakhs will<\/p>\n
be made to the respondent-complainant on or before 04.06.2004. On failure<\/p>\n
of the petitioner-accused to comply with his assurance, the respondent-<\/p>\n
complainant presented the second cheque dated 04.06.2004 of Rs. 1.50 lakhs<\/p>\n
on 08.06.2004 with the drawee Bank, which again was dishonoured and
\n Crl. Revision No. 1576 of 2009.                                        -6-<\/span><\/p>\n
returned, vide memo No. 08.06.2004 with the same remarks “Account<\/p>\n
Closed”. Thereafter, a legal notice dated 11.06.2004 was served upon the<\/p>\n
petitioner-accused to which the response was given by the accused, taking<\/p>\n
therein the plea that these cheques were not given in discharge of any<\/p>\n
liability or loan, but was a security amount of 10% of amount to be paid as<\/p>\n
compensation to the petitioner-accused by P.U.D.A. for a plot of his<\/p>\n
deceased sister on an assurance given by the respondent-complainant that he<\/p>\n
would get that amount to the petitioner-accused. The petitioner-accused<\/p>\n
having failed to make the payment of amount within the prescribed period<\/p>\n
under the Act, a complaint under Section 138 of the Act was preferred by the<\/p>\n
respondent-complainant.\n<\/p>\n
            A perusal of the evidence as led by the parties would clearly<\/p>\n
show that the petitioner-accused cannot run away from the liability of<\/p>\n
cheque No. 255325 dated 05.03.2004 for Rs. 2 lakhs, signed by him as the<\/p>\n
respondent-complainant has been able to prove that he had withdrawn Rs. 2<\/p>\n
lakhs from his Bank Account on 03.03.2004. As regards the liability of<\/p>\n
cheque No. 02000711 dated 04.06.2004 for an amount of Rs. 1.50 lakhs is<\/p>\n
concerned, the respondent-complainant has produced the evidence to show<\/p>\n
that he had withdrawn Rs. 1.50 lakhs on 31.03.2004 from his bank account,<\/p>\n
whereas in the pleadings, it has come that the petitioner-accused had<\/p>\n
approached the respondent-complainant for a loan of Rs. 1.50 lakhs for the<\/p>\n
purpose of business only on 20.04.2004. The contention, therefore, of the<\/p>\n
respondent-complainant that he had withdrawn the amount to make the<\/p>\n
payment to the petitioner-accused for the loan which he had sought from the<\/p>\n
respondent-complainant, cannot be accepted, but that would not lead to<\/p>\n
acquittal of the petitioner-accused as still cheque for an amount of Rs. 2
\n Crl. Revision No. 1576 of 2009.                                         -7-<\/span><\/p>\n
lakhs drawn on 05.03.2004 would fall under the provisions of Section 138 of<\/p>\n
the Act.\n<\/p>\n
            The contention of counsel for the petitioner that as the cheques,<\/p>\n
which have been given by the petitioner-accused were blank, therefore, they<\/p>\n
would not fall under the provisions of Section 138 of the Act, cannot also be<\/p>\n
accepted as signatures thereon has been admitted by him. The respondent-<\/p>\n
complainant on the basis of evidence led by him has been able to prove that<\/p>\n
he had indeed withdrawn Rs. 2 lakhs on 03.03.2004 from his bank account,<\/p>\n
which would go a long way to prove that the petitioner-accused had sought a<\/p>\n
loan from the respondent-complainant, and therefore, in discharge of the<\/p>\n
said loan, a cheque of Rs. 2 lakhs dated 05.03.2004 was issued by the<\/p>\n
petitioner-accused.\n<\/p>\n
            As regards the writing on the body of cheque is concerned, the<\/p>\n
petitioner-accused has not been able to prove it beyond doubt, although<\/p>\n
D.W.3 Shri Navdeep Gupta, handwriting expert has given his opinion that<\/p>\n
the disputed hand writing on the cheque in question when compared with<\/p>\n
standard Ex. D.W.2\/A and the signature of the respondent-complainant<\/p>\n
available on the order sheet dated 23.06.2006, do tally and the statement of<\/p>\n
D.W.2 Amarinder Singh, who is a practising Advocate at Patiala cast a<\/p>\n
doubt regarding genuineness of receipt Ex.D.W.2\/A.          While deposing<\/p>\n
Amarinder Singh has stated that he was neither a summoned witness nor he<\/p>\n
was asked by any of the parties to appear in the Court. He has further stated<\/p>\n
that he was not called by petitioner-accused William Sidhu and stated that he<\/p>\n
had come to the Court personally after coming to know about the case. In<\/p>\n
any case merely because the body of cheque does not depict the same to<\/p>\n
have been filled in by the petitioner-accused, cannot be said to be a ground
\n Crl. Revision No. 1576 of 2009.                                          -8-<\/span><\/p>\n
for holding the cheque to be not a valid tender when the signatures thereon<\/p>\n
are not disputed by the petitioner-accused. The onus was, therefore, heavily<\/p>\n
on the petitioner-accused to show and prove under what circumstances the<\/p>\n
said blank cheques were given. The petitioner-accused has failed to prove<\/p>\n
his contention by any evidence showing that Smt. Gurparkash Kaur Sidhu<\/p>\n
deceased sister of the petitioner-accused was at the first place having a plot<\/p>\n
measuring 1000 sq. yds. situated at village Baran and the acquisition thereof<\/p>\n
by P.U.D.A. Nothing has come on record by way of evidence that there was<\/p>\n
any dispute regarding payment of compensation pending with P.U.D.A. nor<\/p>\n
has it come on record as to how the complainant could have got the matter<\/p>\n
settled between P.U.D.A. authorities, and the petitioner-accused. Having<\/p>\n
failed to show as to for what purpose the cheques were issued by the<\/p>\n
petitioner-accused, the presumption as provided under Section 139 of the<\/p>\n
Act goes in favour of the respondent-complainant and the respondent-<\/p>\n
complainant has, by cogent evidence, been able to prove that he had<\/p>\n
withdrawn an amount of Rs. 2 lakhs from the Bank a few days before the<\/p>\n
same was handed over to the petitioner-accused and the petitioner -accused<\/p>\n
issued a cheque in discharge of that liability.\n<\/p>\n
             The judgments of Andhra Pradesh High Court and Kerala High<\/p>\n
Court, relied upon by counsel for the petitioner in the case of Avon Organics<\/p>\n
Limited (supra) and Gopan Versus Tonny Verghese (supra) would not be of<\/p>\n
any help in the present case to the petitioner-accused.<\/p>\n
             The contention of counsel for the petitioner that the cheques<\/p>\n
have been dishonoured with the remarks “Account Closed”, therefore, the<\/p>\n
liability under Section 138 of the Act would not arise, cannot be accepted.<\/p>\n
There is nothing on record to suggest that on the date when the cheque dated
\n Crl. Revision No. 1576 of 2009.                                           -9-<\/span><\/p>\n
05.03.2004 was issued by the petitioner-accused, the account already stood<\/p>\n
closed and even if such a contention is allowed to be raised then the<\/p>\n
judgments of Kerala High Court in Joseph Versus Philip Joseph (supra)<\/p>\n
would not be applicable to the facts of the present case as in that case the<\/p>\n
account stood closed before the issuance of the cheque. The account in the<\/p>\n
case before Kerala High Court, was closed in the year, 1987, whereas the<\/p>\n
cheque was issued in the year, 1990. In any case, if the contention as raised<\/p>\n
by counsel for the petitioner is accepted that very purpose and intent for<\/p>\n
which the amendment was brought about by the Legislature in the<\/p>\n
Negotiable Instruments Act, would be frustrated. The objects and reason of<\/p>\n
the amendment Act of 2002, whereby Chapter XVII was incorporated<\/p>\n
provides for penalties in case of dishonour of a cheque. These provisions<\/p>\n
were incorporated with a view to enhance the credibility of the instruments.<\/p>\n
If it is held that a person can issue a cheque where the account stands closed<\/p>\n
and then wriggle out of the liability by stating that it would not be covered<\/p>\n
by provisions of Section 138 of the Act, it would amount to nullifying the<\/p>\n
effect of amendment of the year, 2002, and, therefore, this contention of<\/p>\n
counsel for the petitioner cannot be accepted. In any case, in the absence of<\/p>\n
any evidence to the effect that when the cheque dated 05.03.2004 was issued<\/p>\n
by the petitioner-accused, the account stood closed, the requirement of<\/p>\n
Section 138 of the Act, if read, as has been tried to be projected by counsel<\/p>\n
for the petitioner, would still be within the requirement of law as on the date<\/p>\n
when the cheque was issued, the account would be operative and not closed.<\/p>\n
             In view of this position, the judgments of Hon’ble the Supreme<\/p>\n
Court in the case of John K. John (supra) and K. Parkashan (supra) would<\/p>\n
not be of any help to the petitioner.\n<\/p>\n
 Crl. Revision No. 1576 of 2009.                                           -10-<\/span><\/p>\n
             In view of the above, I have come to a conclusion that the<\/p>\n
respondent-complainant has proved that cheque No. 255325 dated<\/p>\n
05.03.2004 for a sum of Rs. 2 lakh issued in favour of the respondent-<\/p>\n
complainant stood dishonoured on the ground that the account stood closed<\/p>\n
and, therefore would fall within the ambit of Section 138 of the Act and,<\/p>\n
thus, stands rightly convicted and sentenced for the same by the Courts<\/p>\n
below.\n<\/p>\n
             The orders passed by the Courts below do not call for any<\/p>\n
interference by this Court and, therefore, the present Revision Petition stands<\/p>\n
dismissed.\n<\/p>\n<\/p>\n
                                       (AUGUSTINE GEORGE MASIH)
\n                                                JUDGE
\nAugust 06, 2009.\n<\/p>\n
sjks.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court William Sidhu Aged About 44 Years vs Tavinder Kumar Son Of Sh. … on 6 August, 2009 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1576 of 2009 (O\/M). Date of Decision : August 06, 2009. William Sidhu aged about 44 years, son of Sh. Gurdial Singh, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-195232","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nWilliam Sidhu Aged About 44 Years vs Tavinder Kumar Son Of Sh. ... on 6 August, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/william-sidhu-aged-about-44-years-vs-tavinder-kumar-son-of-sh-on-6-august-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"William Sidhu Aged About 44 Years vs Tavinder Kumar Son Of Sh. ... on 6 August, 2009 - 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