Daljit Singh @ Daljit Singh Flora vs Saguni Singh

Sanju Panda, J.—The Petitioner has filed this criminal revision challenging the Order Dated 20.10.2006 passed by the Learned Addl. Sessions Judge, Rourkela in Criminal Appeal No. 64 of 2006 confirming the Order Dated 31.7.2006 passed by the Learned JMFC, Pan posh in ICC Case No. 101 of 2004/Trial No. 517 of 2005 convicting & sentencing him u/s 138 of the Negotiable Instruments Act to undergo simple imprisonment for a period of one year & to pay a compensation of Rs. 1,00,000 (Rupees one lakh), in default, to undergo simple imprisonment for a further period of three months. The brief facts of the case are that the Petitioner-accused is a registered contractor under the name & style "M/s. D.S. Flora" having its ESI Sub Code No. 44-1302/612. The Opp. Party-complainant is a petty contractor having no licence. From 17.12.2002, the Opp. Party was doing civil work on the strength of the agreement, vide Ext. A, at different places under the Petitioner. He also used to make payment to the Opp. Party in the transaction. Likewise, the Petitioner had to pay Rs. 50,000 to the Opp. Party which was outstanding dues for completion of certain work. In order to discharge such liabilities, the Petitioner issued a cheque bearing number 506355 dated 30.3.2004 for a sum of Rs. 59,000 drawn on UCO Bank, Bazar Branch, Rourkela-II in favour of the Opp. Party with an undertaking that the cheque would be presented for encashment of money after receiving clearance from the Petitioner. However, Opp. Party contacted the Petitioner over phone & it was alleged that the Petitioner had given consent to present the cheque for encashment. Accordingly, Opp. Party presented the cheque for encashment on 23rd April, 2004 at State Bank of India, Main Branch, Rourkela. The cheque was returned with an intimation that the cheque was bounced due to insufficient of funds. A notice was sent by the Opp. Party through registered post with A.D. on 6th May, 2004 calling upon the Petitioner to make payment of the cheque amount within fifteen days. On 20th May, 2005, a letter was issued by the Petitioner on the plea that without prior permission the cheque was presented. The Opp. Party accordingly filed a complaint petition on 31st May, 2004 on the above allegations for which cognizance for commission of offence u/s 138 of the N.I. Act was taken against the Petitioner. The Petitioner faced the trial. In the trial, the Petitioner took a plea that the cheque was given as security & he admitted that the civil work entrusted to him was done by the Opp. Party. However, the Petitioner took a specific stand that the Section Engineer (Works), South Eastern Railway, Bandomunda issued work orders & it was the understanding between the parties that after receiving the money from the railways by the Opp. Party, he will pay the same to the Opp. Party & till date the Petitioner did not receive the money from the railways. However, the cheque issued as security was presented before the bank without his prior permission.

Learned Counsel for the Petitioner submitted that both the Court below without taking into consideration the above facts & circumstances of the case convicted & sentenced the Petitioner as aforesaid. The Petitioner is also ready & willing to settle the dispute on payment of the principal amount & a lenient view may be taken.

Learned Counsel for the Opp. Party, however, vehemently opposing to the contentions raised by the Learned Counsel for the Petitioner submitted that the Opp. Party has suffered a lot & the Petitioner intentionally harassing the Opp. Party has not paid the money; rather after receiving the notice, the Petitioner has also not taken any step to arrange the money. This Court has considered the rival submissions of the parties.& relied on the decision of the Apex Court in the case of Basavaraj Vs. Dhanlaxmi Finance Co. (R) Terdal, .

It is stated that the Petitioner is ready & willing to settle the dispute & to show his bona fide he has already deposited the cheque bearing number 940451 dated 23.10.2012 amounting to Rs. 59,000 (rupees fifty nine thousand) & the cheque bearing number 056733 dated 10.12.2012 amounting to Rs. 5000/- (Rupees five thousand) before this Court.

Upon consideration of the entire matter, this Court is of the considered opinion that in the facts & circumstances of this case, ends of justice would be served by suitably reducing the sentence. Accordingly, this Court while confirming the conviction u/s 138 of the Negotiable Instrument Act sets aside the substantive sentence imposed by the court below & the fine imposed thereof & modifies the sentence accordingly. It is directed that the amount so deposited by the Petitioner be refunded over to the Opp. Party-complainant on proper application/identification.

Accordingly, the criminal revision is allowed in part.