Dalip Singh vs Mahindra and Mahindra Financial Services Ltd.

Gurdev Singh, J.—Complaint u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ''Act'') was filed against the Petitioner/accused-Dalip Singh by Mahindra & Mahindra Financial Services Limited. It has been averred therein that the accused entered into hire purchase agreement with the complainant-party on 20.9.2000 for the purchase of new vehicle and all the terms and conditions were incorporated in the agreement. To discharge the hire dues and liabilities enforceable by law, the accused issued cheque No. 408461 dated 7.2.2002 for Rs. 2,08,000/-drawn on Punjab National Bank Mandi Adampur. The cheque was presented during the period of its validity, but was dishonored by the banker of the accused on account of insufficient funds in his account. Demand of payment of the said amount was made by giving legal registered notice dated 8.3.2002, but the accused failed to make payment of that amount within 15 days of the receipt of that legal notice. In the preliminary evidence the complainant examined Bhupender Sharma PW1. On the basis of that evidence the Judicial Magistrate, Hisar, found sufficient grounds for proceeding against the accused and he was summoned, accordingly. On his appearance in the Court notice of the offence u/s 138 of the Act was served upon him to which he pleaded not guilty and claimed trial. To prove his guilt prosecution examine Bhupender Sharma PW1. After the evidence was closed by the complainant the accused was examined and his statement was recorded u/s 313 Code of Criminal Procedure The incriminating circumstances appearing against him in the complainants''s evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence. After going through the evidence so produced on the record and hearing learned Counsel for both the sides the Judicial Magistrate, Ist Class, convicted the accused for the said offence and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of `5,000/-and in default thereof to undergo simple imprisonment for a period of three months and was also directed to pay litigation expenses of `5000/-to the complainant by way of compensation. Against that conviction and sentence the accused preferred an appeal, which was dismissed by the Additional Sessions Judge, Hissar, vide his judgment dated 12.12.2009. Now he has preferred the present revision against that conviction and sentence.

I have heard learned Counsel for the Petitioner.

It has been submitted by learned Counsel for the Petitioner that the conviction of the accused could have been recorded on the basis of the evidence so produced by the complainant and which consists of solitary statement of Bhupender Sharma PW1. According to that witness on the day the cheque in question is said to have been issued by the accused he was not working in the office of the complainant company at Hissar where the cheque is said to have been delievered. Therefore it cannot be held on the basis of his statement that the cheque in question was so drawn by the accused. In support of that submission he has referred to judgment of Kerala High Court reported in AIR 2008 (NOC) 2784 (KER) Jose v. P.C. Joy and Anr. He further submitted that the evidence produced by the complainant regarding the issuance of the cheque stands contradicted by the enteries of the statement of account proved on the record as Ex.P6, which itself makes the version of the complainant highly doubtful. Thus the conviction and sentence of the accused is liable to be set aside and he is entitled to acquittal.

In order to prove the offence u/s 138 of the Act the complainant was required to prove that the cheque in question was drawn by the accused which on presentment to his banker was dishonored on account of insufficient funds in his account and that he failed to pay that amount mentioned in that cheque inspite of the receipt of statutory notice. In order to discharge that onus the complainant examined Bhupender Sharma PW1. No doubt he deposed about all these facts but the question arises whether on the basis of the statement it can be held that the cheque was drawn by the accused?

This witness has appeared as general attorney of the complainant company. The photostat copy of power of attorney was proved on the record as Mark ''A''. This power of attorney was executed on 20.12.2005. Thus he was not the general attorney of the complainant on the day the cheque in question is alleged to have been issued. That cheque was issued on 7.2.2002 and on that day he was not posted at Hissar. It is not his statement that this cheque was issued to him by the accused. It has come out during this statement that cheque was given to Rajesh Soni. It is now well settled that general attorney can depose only about the facts which came to his knowledge as attorney or regarding which he has the personal knowledge. It cannot be said that this witness had the personal knowledge of all those facts as he was not posted at Hissar on the day the cheque was issued, nor that fact can be said to have come to his knowledge as attorney as he was appointed as such by the complainant in the year 2005. Therefore, it cannot be held that the complainant was able to prove that the cheque was drawn by the accused. When such is the case, he could not have been convicted for the offence u/s 138 of the Act.

In the result this revision is accepted. The conviction and sentence of the accused is set aside. The fine/compensation, if already, deposited be refunded to him.

Records be returned forthwith.