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TMI Blog2023 (9) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding which FIR Ex.D2 was lodged against him. The impugned judgment of conviction and order of sentence as recorded by the Courts below are set aside. The petitioners stand acquitted of the charges. The present revision petition is hereby allowed. - HON'BLE MR. JUSTICE DEEPAK GUPTA Mr. Manish Soni , Advocate for the petitioners Mr. Kamal Kumar Mor , Advocate for the respondent ORDER Deepak Gupta , J. In criminal complaint No. 110 of 2014 titled as Devender Bhardwaj v. Alok Shandiliya and others , the two petitioners have been convicted under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as 'the N.I. Act'), vide judgment dated 27.01.2016 passed by learned Judicial Magistrate 1st Class, Gurugram. Vide separate order dated 29.01.2016, both of them were sentenced to undergo simple imprisonment for a period of 1 month each. In addition to the same, they were also ordered to pay double of the cheque amount to the complainant as compensation to him. 2. Criminal appeal No. 72 of 2016 filed by the petitioners against the aforesaid conviction and sentence has been dismissed by the Court of learned Additional Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of intent issued by another company as Ex.D1. The two accused further admitted to have received legal notice by stating that they had replied to the same on 15.02.2014 and copy of that reply is Annexure P-6. In their defence, the two accused produced two witnesses. 7. After hearing both the sides and perusing the evidence on record, learned Trial Court was not convinced with the defence pleaded by the accused and convicted both of them as per details given earlier. Appeal against the said conviction and sentence has been dismissed. 8. It is contended by learned counsel for the petitioners that both the Courts failed to appreciate the defence pleaded by accused-petitioners, which was well proved on record, inasmuch as the payment of the cheques was stopped by the petitioners on account of the fraud having been committed by the complainant. The complainant used to disburse the salary of guards of the company. He retained the salary by forging signatures of some of the guards. Besides, complainant did not account for the amount given to him for the purchase of shoes for the guards. Not only this, he was found to have been employed in another company, namely, Skylark Securities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners-accused. It is also not in dispute that the two cheques were issued by the accused towards wages of the complainant and both the cheques on presentation have been dishonoured on account of the fact that payment thereof was stopped by the drawer. 14. However, neither in the complaint nor in his affidavit Ex.CW1/A, complainant disclosed as to the period of the wages for which the cheques in question were issued. Petitioners-accused have not disputed that they received the legal notice dated 30.01.2014 (Ex.P-4). However, it is the specific stand of the accused that they had sent reply dated 15.02.2014 to the said legal notice, which is available on the Trial Court record as Ex.P-6. 15. Interestingly, though the complainant neither referred in his complaint about the said reply dated 15.02.2014 to have been received by him from the accused nor referred about the same in his affidavit Ex.PW1/6, but it is on the date of his deposition on 05.05.2014 that complainant himself placed it on record as Ex.P-6. 16. The aforesaid reply Ex.P-6 discloses the clear stand taken by the accused, the relevant portion of which is as under:- 1. That you have worked in the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the legal notice sent by the accused, the cheques were issued for the salary of complainant for the period of November and December, 2013. It had been alleged that complainant had not accounted for not returned an amount of ₹. 51,886/-towards wages of the staff given to him for disbursement nor had accounted for ₹. 22,611/-given to him for purchase of shoes for the guards nor had accounted for ₹ 210 sets of uniforms costing of approximately 2 lacs. Apart from this, it had been alleged that complainant was found to be working with another company since 31.10.2013. 18. There is absolutely nothing on record to show that complainant ever responded to the above said reply of the legal notice to refute the allegations contained therein against him. 19. During his cross-examination, CW1 complainant Devender Bhardwaj though initially denied that as per his job profile, he used to disburse the salary of the staff, but admitted that once or twice, he had distributed the salary of the staff. He admitted lodging of the FIR Ex.D2 against him and that he had joined the inquiry conducted by the Economic Offences Wing. Though, he admitted to have received the appointme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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