JOGINDER SINGH GALTA Vs. RAKESH KUMAR
LAWS(HPH)-1997-9-17
HIGH COURT OF HIMACHAL PRADESH
Decided on September 16,1997

Joginder Singh Galta Appellant
VERSUS
RAKESH KUMAR Respondents


Referred Judgements :-

SIVASANKAR V. SANTHAKUMARI [REFERRED TO]
KUMARESAN V. AMEERAPPA [REFERRED TO]
CHELLAKANNU NADAR V. SIMON [REFERRED TO]
CHAHAL ENGINEER AND CONSTRUCTION V. VERMA PLYWOOD CO [REFERRED TO]
KONARK CABLES PVT. LTD. V. PREMIER ENGG. AND ELECTRICAL CORPORATION AND ANOTHER [REFERRED TO]
SEKHAR GUPTA V. SUBHASH MANDA [REFERRED TO]
L. SASHIKALA V. INTEGRATED FINANCE CO. LTD [REFERRED TO]
BENGAL IMMUNITY COMPANY LIMITED VS. STATE OF BIHAR [REFERRED TO]
STATE OF BIHAR VS. DEOKARAN NENSHI [REFERRED TO]
STATE OF MAHARASHTRA VS. SOM NATH THAPA [REFERRED TO]
SYED RASOOL AND SONS VS. AILDAS AND COMPANY [REFERRED TO]
STATE OF MAHARASHTRA VS. SURBI CHAGAN HIRABHAI MARAMAN DEVSI [REFERRED TO]


JUDGEMENT

ARUN KUMAR GOEL, J. - (1.)PETITIONER has filed this revision petition against the order dated 8.5.1997 passed by the trial Court whereby it has been ordered that there is sufficient evidence to frame charges against him under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Act') and under Section 420 IPC and consequently charge was also framed on the same day.
(2.)BRIEF facts of the case which are within a narrow compass may be noticed. Rakesh Kumar respondent (hereinafter referred to as the 'complainant') filed a complaint under Section 138 of the Act and 420 IPC in the Court of Sub Divisional Judicial Magistrate, Theog against the petitioner (hereinafter referred to as the 'accused') alleging therein that the latter had issued three cheques for Rs. 80,000/ -, Rs. 50,000/ - and Rs. 20,000/ - dated 2.9.1992, 25.11.1992 and 30.11.1992, respectively. All these cheques were issued from the Saving Bank Account No. 4409 which the accused had with the H.P. State Cooperative Bank Limited at Kotkhai. When these cheques were presented on 12.2.1993 to the banker of the accused, they were dishonoured. Further case of the complainant was that notice vide Ext. P.5 was issued calling upon the accused to pay the amount within the statutory period under Section 138 of the Act and on his failure to pay the amount, complaint was filed. Complainant appeared as PW.1 in his preliminary evidence on 12.4.1993 and closed his evidence. Trial Court after considering the preliminary evidence was satisfied that there were prima facie grounds to proceed against the accused under Section 138 of the Act as well as under Section 420 IPC. Accordingly, on 22.4.1993, process was ordered to be issued. After the accused had appeared, evidence on behalf of the complainant was recorded. Complainant then appeared as PW.1 on 7.1.1994 and examined PW.2 Bhag Mull Thakur, Manager of the aforesaid bank at its Kotkhai branch. As per the case of the complainant, cheques Exts. P.1 to P.3 were issued by the accused and intimation regarding their dishonour was received by the complainant vide Ext. P.4. Thereafter within the period prescribed under Section 138 of the Act, notice was issued vide Ext. P.5. Postal receipts Exts. P.6 and P.7 and A.Ds. Exts. P.8 and P.9 have been proved on record by this witness. In his cross -examination, PW.1 has admitted that he received a sum of Rs. 41,500/ - and another sum of Rs. 13,000/ - besides Rs. 500/ -. He denied having received a further sum of Rs. 48,000/ - and Rs. 5000/ -, although it has come in the statement of PW.2 Branch Manager of Kotkhai branch of the H.P. State Cooperative Bank Limited that these two amounts were debited from the account of the accused and credited to the account of the complainant. He has placed on record Ext. D, certificate issued by the Kotkhai Branch of the aforesaid bank in that behalf.
(3.)ON the other hand, the evidence as spelt out from the cross -examination of the complainant as PW.1 appears to be that in addition to the admitted payments of two cheques, other two payments of Rs. 48,.000/ - and Rs. 5,000/ - were made by the accused. Besides this, further sum of Rs. 54,000/ - was paid in cash. According to the accused, produce of the orchard was purchased by him in the year 1992 for Rs. 1,50,000/ -, whereas complainant alleged that the crop was sold for Rs. 2,05,000/ - and out of this agreed sum, an amount of Rs. 1,50,000/ - was due and outstanding.
For what amount the orchard crop was sold or what is the amount paid is not relevant for the determination of the present case. Similarly, whether the accused had discharged his liability completely as was being urged, partly by means of four cheques and partly by cash payment is also not relevant for the determination of the present case. As the parties are before the civil Court, so the matter is being left here only because any observation made by this Court may prejudice either of the parties in the civil litigation. However, it may be clarified that on the basis of the evidence recorded particularly of PW.2 as well as amounts, receipt whereof is admitted by the complainant, it is established that a sum of Rs. 5,000/ - and another sum of Rs. 48.000/ - was also debited to the account of the accused and credited to the account of the complainant.



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