- (1.) The petitioner/accused, M/s Goyal Gas Agency, has filed the present revision through its power of attorney R.D.Goyal, against the judgment dated 13.9.2007, vide which the appeal filed by him against the judgment dated 4.5.2006 passed by CJM, Kurukshetra, convicting him for the offence under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as the Act) and sentencing him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 5,000/- and in default thereof, to undergo rigorous imprisonment for a period of three months and to pay compensation of Rs. 6 lakhs under Section 357 of Cr.P.C., was dismissed and the revision preferred by the respondent/complainant for Crl. Revision No. 1722 of 2007 enhancement of the sentence and the compensation was also dismissed.
(2.) The facts, in brief, are that the complainant-M/s Sat Parkash and sons, a partnership firm, filed complaint through one of its registered partner Ajay Kumar under Section 138 of the Act against M/s Goyal Gas Agency, sole proprietorship concern, through its power of attorney R.D. Goyal and its proprietor Dashoda Devi, contending therein that the accused received different amounts from him on different dates through cash and cheques to the extent of Rs. 7, 18,540/-. In discharge of his liability, the accused issued two cheque for Rs. 50,000/- and Rs. 1 lakh bearing Nos. and 105681 dated 29.6.1995 and 10.7.1995, respectively. The accused was requested many a times to discharge whole of his liability and he issued another cheque No. 173368 dated 30.6.1995 for Rs. 4 lakhs drawn on Union Bank of India, Kurukshetra, which on presentment to the banker of the accused was dishonoured on account of insufficient funds in his account, vide memo dated 13.7.1995. Legal notice dated 27.7.1995 was served upon the accused through registered post and under postal certificate and the same was replied by him vide reply dated 12.8.1995, sent through registered post. Inspite of issuance of notice, the amount of the cheque was not paid. In support of the complaint, preliminary evidence was produced and on the basis thereof, the CJM found sufficient grounds for proceeding against R.D. Goyal, who was summoned accordingly, vide order dated 17.2.1997. On his appearance in the Court, notice of offence was served upon him, to which he pleaded not guilty and claimed trial. To prove his guilt the complainant examined himself as PW-1 and Manhar Shukul, Accountant (PW-2). After the evidence was closed by the complainant, the accused was examined by Crl. Revision No. 1722 of 2007 the trial court and his statement was recorded under Section 313 of the Cr.P.C. The incriminating circumstances appearing against him in the complainant's evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence. He stated that one of his cheque book in respect of the account No. 16082, containing cheque No. 173351 to 173375 was lost about which he had given application to the police on 30.5.1995 and at the same time, he had written to the bank to stop the payment of those cheques. Inspite of that, the amounts of cheque Nos. 173367 and 173369 were paid by the bank in collusion with each other and both these cheques are dated 1.6.1995. In these circumstances, there was no question of issuing cheque No. dated 30.6.1995. There was a dispute regarding money dealings with the complainant in which a compromise was entered on 26.6.1995 (Ex. D.10) and the factum of the loss of the cheque book was mentioned in that compromise. Vide that compromise, it was undertaken by the complainant that he will not misuse the said cheque and still the same was done by him. The accused was called upon to enter on his defence and he examined Dharam Pal (DW-1), Manhar Shukal (DW-2), Balbir Singh (DW-3), Dina Nath Arora (DW-4), Prabhu Ram (DW-5), Subhash Chand (DW-6), Sushil Kumar (DW-7), Raghbir Chand (DW-8), Atam Parkash (DW-9) and Upender Nath (DW-10).
(3.) I have heard learned counsel for both the sides.;