1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
CRIMINAL REVISION NO______OF 2012
SANJIVE KUMAR …PETITIONER
(PRESENTLY CONFINED IN DISTRICT JAIL, JIND)
VERSUS
DEVENDER KUMAR …RESPONDENT
INDEX
S.NO / Particulars / Dates / Pages1.
2.
3.
4.
5.
6.
7.
8.
9. / Appl. U/s 482 Cr.P.C. for placing on record and exemption for filling certified copy of Annexure P-1
Appl. U/s 397 Cr.P.C. for suspension of sentence
Grounds of Revision
Memo of Parties
Judgment of Sessions Judge, Jind
Grounds of Appeal before Sessions Judge, Jind
Judgment/Order of JMIC, Safidon
Copy of Complaint (Annexure P-1)
Power of attorney / 06.05.2012
06.05.2012
06.05.2012
06.05.2012
01.05.2012
11.01.2012
12.12.2011
08.12.2009
06.05.2012 / 1
2-3
4-12
13
14-23
24-30
31-41
42-44
NOTE:1. No such or similar petition has earlier been filed by the accused/petitioner either in this Hon’ble Court or in the Hon’ble Supreme Court of India.
2. The petitioner is presently confined in District Jail, Jind.
CHANDIGARHMUNISH KUMAR GARG
DATED: 06.05.2012 ADVOCATE
P/1752/2007
COUNSEL FOR THE PETITIONER
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
CRM ______OF 2012
IN CRR NO______OF 2012
SANJIVE KUMAR …PETITIONER
(PRESENTLY CONFINED IN DISTRICT JAIL, JIND)
VERSUS
DEVENDER KUMAR …RESPONDENT
APPLICATION under Section 482 Cr.P.C. for placing on record and for exemption from filing the certified/original copy of Annexure P-1
RESPECTFULLY SHOWTH:
- That the petitioner is filing an accompany criminal Revision in this Hon’ble Court, which is likely to succeed on the grounds taken therein. The grounds of the same may be read as part and parcel of the present application.
- That the certified/original copies of Annexure P-1 to P-5 are not readily available with the petitioner. However, the true typed copy of the extract of the same is being filed for the kind perusal of this Hon’ble Court.
It is, therefore, respectfully prayed that the present application may kindly be allowed and the petitioner be exempted from filing the certified/original copy of Annexure P-1, in the interest of justice.
Note:Affidavit is not required.
CHANDIGARHMUNISH KUMAR GARG
DATED: 06.05.2012 ADVOCATE
P/1752/2007
COUNSEL FOR THE PETITIONER
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
CRM ______OF 2012
IN CRR NO______OF 2012
SANJIVE KUMAR …PETITIONER
(PRESENTLY CONFINED IN DISTRICT JAIL, JIND)
VERSUS
DEVENDER KUMAR …RESPONDENT
Application under Section 397 Cr.P.C. for suspending the sentence imposed upon the petitioner and for releasing the petitionerfrom bail, during the pendency of the present petition.
RESPECTFULLY SHOWETH:
- That the petitioner is filing the accompanying revision petition in this Hon’ble Court, which is likely to succeed on the grounds taken therein. The grounds of the revision may kindly be read as part and parcel of the present application.
- That the impugned judgment of conviction and order of sentence, passed by ld. courts below are totally illegal and without jurisdiction. The facts of the case, evidence on record and relevant proposition of law, applicable thereto has neither been properly considered nor appreciated by the ld. lowers below, while passing the impugned judgment of conviction and order of sentence. The impugned judgment of conviction and order of sentence, passed by the ld. courts below are totally illegal, erroneous, perverse, without jurisdiction, insufficient, based on conjectural grounds and are not sustainable in the eyes of law.
- That the petitioners undertake to abide by all terms and conditions imposed by this Hon’ble Court, while granting the relief of bail to him and is ready to furnish the bail bonds.
- That in the present facts and circumstances, as submitted above and in the interest of justice which warrants suspension of sentence imposed upon the petitioner, during the pendency of the revision petition.
It is, therefore, respectfully prayed that the application may kindly be allowed and the sentence imposed on the petitioner, may kindly be suspended and the petitioner be ordered to be released on bail, during the pendency of the revision petition in this Hon’ble Court, in the interest of justice.
NOTE:No affidavit is required as the petitioner is confined in District Jail, Jind.
CHANDIGARHMUNISH KUMAR GARG
DATED: 06.05.2012 ADVOCATE
P/1752/2007
COUNSEL FOR THE PETITIONER
GROUNDS OF REVISION
- That the ld. courts below legally erred in convicting and sentencing the accused/petitioner under Sec. 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as the Act). The facts of the case, evidence on record and relevant proposition of law, applicable thereto has neither been properly considered nor appreciated by the ld. lowers below, while passing the impugned judgment of conviction and order of sentence. The impugned judgment of conviction and order of sentence, passed by the ld. courts below are totally illegal, erroneous, perverse, without jurisdiction, insufficient, based on conjectural grounds and are not sustainable in the eyes of law.
- That the ld. courts below, while convicting and sentencing the accused/petitioner, failed to appreciate the material facts that complainant himself in his complaint filed by him before the ld. Lower court dated 08.12.2009, Safidon had taken the various pleas of dues and liabilities as enshrined in Para No.1 and No.6 of the complaint, which is reproduced here as under,:-
“Para No. 1:-That the complainant was serving with the accused and in lieu of payment of salary the accused had issued a Cheque bearing No. 087633 dated 14.10.2009 amounting to Rs.70,000/- drawn at P.N.B. Gannur in f/o complainant for discharging his liability of payment of salary.”
Whereas in Para No.6 of the complaint the complainant is taking the plea, which is reproduced here as under:-
“Para No. 6:- That the accused borrowed the amount in question from the complainant and aforesaid cheque was also received by complainant from accused and deposited at Safidon PS Safidon District Jind and the intimation of dishonored of cheque has also been received as Safidon Tehsil Safidon from SBOP Safidon and the amount was to be paid by the accused to complainant at Safidon PS Safidon, which is within the jurisdiction of the Hon’ble Court and the Hon’ble court has jurisdiction to try and decide the present complainant.”
And the ld. courts while deciding this issue comes to an finding that “it has been observed that the version of the complainant is clear that the cheque in question was issued for discharge of his liability for arrears of his salary” and by accepting this plea taken by the complainant in Para No.1 of the complaint by the ld. Courts below caused grave injustice to the accused and also ld. courts below did not give any finding on the plea taken by the complainant in his complaint in Para no.6 of the complaintthat the accused had borrowed the money from him and in lieu of that borrowed money the accused had issued the aforesaid cheque to him, but the ld. courtsbelow had failed to appreciate this material fact that how two inconsistent pleas are tenable for the same disputed chequewhich was allegedly issued by the accused while issuing cheque as alleged by the complainant in lieu of debt towards borrowed money and liability towards non-payment of due salary and the complainant had not proved any one of the plea taken by him in his complaint in Para No.1 and 6 by leading any cogent evidence in this regard, which resultantly caused failure and miscarriage of justice to the accused/petitioner. Copy of the complaint dated 08.12.2009 is annexed herewith as Annexure P-1.
- That the ld. courts below, while convicting and sentencing the accused/petitioner, failed to appreciate the material facts by holding that according to the provisions of Section 139 of the Act that there is presumption is to drawn in favour of the holder of the cheque that the same was issued by the drawer in whole or in part of any debt or liability, by ignoring the latest view of the Hon’ble Supreme Court of India in KRISHNA JANARDHAN BHAT VS DATTATRAYA G.HEGDEreported in 2008(1) RCR (CRI) 695 SC, which clearly diamonds this provision of NI Act that:-
“in dishonor of cheque cases, presumption is only available is as to issuance of cheque for discharge of any debt or other liability – Existence of legally recoverable debt is not a matter of presumption U/s 139 of the Act”
and this view was approved by other courts in Indiatoo, reported in 2009 (1) CCC 54 (SC) in P. VENUGOPAL VS MADAN P.SARATHI and 2009 (1) CCC 094 (Kerela) in JOSE VS ROY, that:-
“Negotiable Instruments Act, 1881, Ss.138, 139 – Dishonor of Cheque – Presumption u/s139 of the Act – Presumption is available only when it is proved that cheque was drawn by the accused – Court can decide this only from evidence produced on record as to whether cheque was filled by accused or by the complainant under instructions of accused or it was filled by complainant himself without instructions from the accused – Mere production of cheque only proves the existence of the document but not the truth of its contents or the fact it was created or made by accused – When drawing is not proved presumption u/s139 of the Act is not available.”
,but the ld. Courts below did not consider the view of the Hon’ble Courtsu/s139 of the Act and which resultantly caused failure and miscarriage of justice to the accused/petitioner and which results into the conviction of the petitioner.
- That the ld. courts below, while convicting and sentencing the accused/petitioner, failed to appreciate the material facts that the complainant accepted in his cross-examination that he worked in the office of accused for 5 years and he had stopped working in the office of Sanjive Kumar in the month of May, 2009, then why he left the work place without settling all the dues, as it is not feasible in present scenario that an employee will left the job without getting his salary dues clear from his employer, this view was not taken into consideration by ld. courts below while giving findings on the issuance of cheque, which resultantly caused failure and miscarriage of justice to the accused/petitioner.
- That the ld. courts below, while convicting and sentencing the accused/petitioner, failed to appreciate the material facts that the cheque in question was never issued by the accused to the complainant for any such discharge of due or liability rather the same was misused by the complainant by taking undue advantage of the trust and faith shown by the accused/petitioner on complainant/respondent during his course of employment, as the same is evident from the statement of Sanjive Kumar U/s 313 of the Cr.P.C. which clearly reveals that he had not issued any cheque to the complainant/respondent and even the suggestions was put in the cross-examination of the CW-3 i.e. Devender Kumar regarding this point thatit is wrong to suggest that no salary was due towards the accused/petitioner and it is also wrong to suggest that this cheque was given in confidence and you had misused it and it is also wrong to suggest that no amount of yours was due towards the accused. But the approach of both the ld. courts below is totally erroneous by come to the finding that no suggestions were put to the complainant in this regard, which resultantly caused failure and miscarriage of justice to the accused/petitioner.
- That the ld. courts below, while convicting and sentencing the accused/petitioner, failed to appreciate the material fact that on reaching to the conclusion that as it was not sufficient by the petitioner by mere examining himself U/s 313 Cr.P.C. that he had not issued any cheque in favour of respondent/complainant, rather it was for him to appear in the witness box as his own defense witness after seeking due permission of the court to prove as to when and under what circumstances he had issued the cheque in question to the complainant/respondent, but this approach is totally erroneous of the ld. courts below, as it was clearly held by the Hon’ble Supreme Court of India in KRISHNA JANARDHAN BHAT VS DATTATRAYA G.HEGDE that:-
“accused need not examine himself to rebut the presumption raised U/s139 of the Act, as he may discharge the burden on the basis of materials already brought on record, reported in 2008(1) RCR (Cri)695 SC,”
And this cause the grave injustice to the accused/petitioner and which suffers from material contradictions, and same cannot be the basis of conviction.
- That the impugned judgment of conviction and order of sentence, passed by ld. courts below are totally illegal, without jurisdiction, perverse, based on surmises and conjectures and result of misreading and non-appreciation of the evidence on record and are not sustainable in the eyes of law. The case law cited by the counsel for the petitioner has neither been properly considered nor appreciated by the ld. courts below while passing the impugned judgment and order. Therefore, the impugned judgment of conviction and order of sentence, passed by the ld. courts below are totally illegal and without jurisdiction and are not sustainable in the eyes of law. Necessary ingredients of Section 139NI Act are missing from the case in hand. There is no evidence on record to connect the accused/petitioner with the commission of offence at all.
- That the sentence imposed by the ld. courts below is highly excessive and disproportionate to the alleged offence committed. The accused/petitioner is first offender and has never been convicted by any court of law. The accused/petitioner have a big family to support. The courts below have not considered the provisions of Section 360 Cr.P.C. while sentencing the accused/petitioner. In the facts and circumstances of the case, the accused/petitioner is entitled to the benefit of probation.
It is, therefore, respectfully prayed that the revision petition may kindly be allowed and the impugned judgment of conviction and order of sentence, passed by the ld. courts below may kindly be set aside and the accused be acquitted of the charge, in the interest of justice.
It is further prayed that during the pendency of the revision petition the accused/applicant may kindly be ordered to be released on bail, in the interest of justice.
NOTE:1.No such or similar petition has earlier been filed by the accused/petitioner either in this Hon’ble Court or in the Hon’ble Supreme Court of India.
2. The petitioner is presently confined in District Jail, Jind.
CHANDIGARHMUNISH KUMAR GARG
DATED: 06.05.2012 ADVOCATE
P/1752/2007
COUNSEL FOR THE PETITIONER
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH
CRIMINAL REVISION NO______OF 2012
MEMO OF PARTIES
Sanjive Kumar S/o Sh.Chander Bhan Prop. of Tara Tele Shop, Market Committee Road, Opp. P.N.B. Gannur.
…PETITIONER/ACCUSED
(PRESENTLY CONFINED IN DISTRICT JAIL, JIND)
VERSUS
Devender Kumar S/o Sh.Krishan Kumar Saini R/o Vill. Karkhana, Tehsil Safidon, Distt. Jind. …RESPONDENT/COMPLAINANT
CHANDIGARHMUNISH KUMAR GARG
DATED: 06.05.2012 ADVOCATE
P/1752/2007
COUNSEL FOR THE PETITIONER
Copy of judgment dated 01.05.12
IN THE COURT OF SHRI RAMENDRA JAIN, SESSIONS JUDGE, JIND
Criminal Appeal No. 13 of 2012
Date of institution: 13.01.2012
Date of Decision: 01.05.2012
Sanjive Kumar Son of Chander Bhan, proprietor Of Tata Tele Shop, Market Committee Road, Opposite Punjab National Bank, Gannaur.
…Appellant-Convict.
Versus
Devender Kumar Son of Krishan Saini, resident of village Karkhana, Tehsil Safidon, Distt. Jind
…Respondent-Complainant
2. State of Haryana
…Respondent no. 2
Criminal appeal against the judgment of conviction dated 12.12.2011 and order on quantum of sentence dated 14.12.2011 passed by Shri Sunil Kumar, learned Judicial Magistrate Ist Class, Safidon (Jind).
Present:Appellant on bail with Shri J.N. Bhardwaj, Advocate.
Shri M.K. Redhu, Advocate for the respondent.
JUDGMENT
The present appeal has been filed by appellant-convict Sanjive Kumar against the judgment of conviction dated 12.12.2011 and order of sentence dated 14.12.2011 passed by Shri Sunil Kumar, learned Judicial Magistrate Ist Class, Safidon, District Jind in Criminal Complaint No. 55-2 dated 09.12.2009/01.06.2011 filed by complainant Devender Kumar under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the Act) convicted and sentenced him to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1,000/- and in default, thereof to further undergo imprisonment for 15 days. A compensation of Rs.25,000/- was awarded to the complainant to be recovered from the accused.
2.Brief facts relevant for its decision are that the complainant was serving with accused and he issued a cheque bearing No. 087633 dated 14.10.2009 amounting to Rs.70,000/- drawn on Punjab National Bank, Gannaur in discharge of his liability of payment of salary. The complainant deposited it with his baker State Bank of Patiala, Safidon, but it returned the same vide memo dated 20.10.2009 alongwith memo dated 15.10.2009 of Punjab National Bank, Safidon with the remarks ‘ACCOUNT CLOSED’. Thereafter, he sent registered legal notice dated 14.11.2009 to the accused through his counsel duly delivered on 19.11.2009, but even thereafter he did not make payment to him of the aforesaid cheque within stipulated period or till date. The accused had thus intentionally, mischievously, deliberately and malafidely issued the chueque in question knowing fully well that on presentation it would never be honoured because of ‘Account closed’.
3.In preliminary evidence, the complainant appeared in witness box as CW-1 and made deposition on his affidavit Ex.CW-1/A and also produced documents viz. dishonoured cheque Ex.C1, memos Ex.C2, receipt Ex.C3, notice Ex.C4, postal receipt Ex.C5, acknowledgement Ex.C6 and UPC receipt Ex.C7. After hearing learned counsel for the complainant and going through the material on record, the learned trial Court vide its order dated 12.12.2009 summoned the accused to face trial under Section 138 of the Act.
4.Upon appearance, the accused was served with notice of accusation under Section 138 of the Act by the learned trial Court vide order dated 08.03.2010 to which he pleaded not guilty and claimed trial.
5.Thereafter, the complainant examined Kehar Singh, Branch Manager, State Bank of Patiala, Safidon as CW-1 followed by Dharam Pal, Clerk, Punjab National Bank, Gannur CW-2, himself as CW-3 and relied upon the documents viz. cheque in question Ex.CW-1/A, letter Ex.CW-2/A, memo Ex.CW-1/C, postal receipt Ex.C2, due acknowledgement receipt Ex.C3, UPC receipt Ex.C4, copy of notice Ex.C1, affidavit Ex.CW-1/A, statement of account of the accused Ex.CW-2/A, statement of account of the complainant Ex.CW-1/F, an extract of register Ex.CW-1/C and another extract of register Ex.CW-1/B.