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TMI Blog2022 (11) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... stice would be best served, if the convict is directed to pay compensation. The Hon'ble Supreme Court of India in Pankaj Bhai Patel Vs. State of Gujarat 2001(1) CCJ 119 has held that -the Magistrate has power to allow any sum as compensation under S.357(3) Cr.P.C. The convict is directed to pay compensation under section 357(3) Cr.P.C. to complainant of amount equivalent to the cheque amount i.e. 2,81,000/- within period of one month of expiry of period prescribed for appeal, or its disposal, if any. It is ordered accordingly. The period of imprisonment/detention already undergone by the convict, if any, during the trial of this case shall be set-off against the substantive sentence under S.428 of Cr.P.C. File be consigned to record room, Chandigarh. Pronounced in open court on this, 25th Day of January, 2018." Challenge is also to the order dated 11.05.2022 vide which the appeal filed by the present petitioner has been dismissed by the Additional Sessions Judge, Chandigarh. 2. Learned counsel for the petitioner has primarily raised two arguments to challenge the said judgments. The first argument raised is that the brother of the petitioner had entered into a partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es Ex.C6 and C7. The trial Court after considering the entire evidence and documents on record, had formulated the following two points for determination:- "1. Whether accused has issued cheque in question in discharge of his legal outstanding liability towards complainant? 2. Whether accused is guilty for commission of offence punishable under Section 138 of N.I. Act?" After considering the entire material as well as the provisions of Section 139 and 118(a) N.I.A., the trial Court answered both the points in favour of the complainant and accordingly, convicted the petitioner under Section 138 N.I.A. and sentenced him as has been detailed hereinabove. 5. The appellate Court in appeal re-appreciated the entire evidence and dismissed the appeal filed by the petitioner. The evidence with respect to the financial capacity of the complainant and the evidence of the complainant (CW-1) to the effect that he had a business of Mango Garden in Sector 28-29, Chandigarh for the last 10-12 years and the fact that he used to earn Rs.1 lac annually as profit, was taken into consideration. It was also observed that the petitioner had not led any defence evidence in support of his pleas and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the cheques are drawn. Even in the aforesaid case, the cheque was a signed blank cheque which had been subsequently filled up by the complainant. The Hon'ble Supreme Court in the said case had also held that the revisional Court should not interfere in the absence of jurisdictional error. The relevant portions of the said judgment are reproduced hereinbelow:- "20. As held by this Court in Southern Sales and Services and Others vs. Sauermilch Design and Handels GMBH, 2008(4)RCR (Civil) 729, it is a well established principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative. xxx xxx xxx 22. In Hiten P. Dalal vs. Bratindranath Banerjee, this Court held that both Section 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer, AIR 1958 Supreme Court 61, this Court held that it was obligatory on the Court to raise this presumption. 23. Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f this Court in Shalini Enterprises Vs. India Bulls Financial Service reported as 2013 (2) CCC, 835 , the petitioner cannot escape liability on the ground that the cheque in question was a security cheque. The relevant portion of said judgment is reproduced hereinbelow:- "His additional plea is that the cheque which was presented for encashment was actually a security cheque and hence no liability would arise by dishonour of such a cheque. xxx xxx xxx Additional plea of the petitioner that dishonour of a security cheque can not fasten the liability on the drawer under the Negotiable Instruments Act is also not acceptable. There can be no doubt regarding the fact that the security cheque is an integral part of the commercial process entered into between the Petitioner and Respondent/ Complainant. The security cheque is not only a deterrent for the drawer against dishonoring his financial commitment but can also be legally and validly utilized towards the discharging of the liability of the Drawer. It cannot by any stretch be argued that a security cheque is not handed over or issued in pursuance of any undischarged liability. To hold so would defeat the whole purpose of a se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence that the petitioner had given a cheque to him in the month of October 2013 and the same was duly filled up by the petitioner and it is also recorded that no suggestion was given to the complainant at the time of his evidence that the cheque was given at the time of execution of the partnership deed, which as per the case of the petitioner was executed between the brother of the petitioner and the complainant. Thus, the evidence of the complainant, which fully supports the averments made in the complaint, has remained unrebutted. Learned counsel for the petitioner has not referred to any piece of evidence before this Court to show that the said evidence of CW-1 has been misread or misconstrued. iv) Even the argument sought to be raised by learned counsel for the petitioner that the cheque was issued by the petitioner at the time of the execution of the partnership deed between the brother of the petitioner and the complainant, is highly unbelievable. Apart from the fact that there is no evidence to substantiate the said plea, it is also highly improbable that when two persons are entering into a partnership, then a third person would issue a blank signed cheque as securit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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