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TMI Blog2023 (11) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment dated 14.06.2019, passed by the learned Sessions Judge, Hamirpur, District Hamirpur, H.P. (hereinafter referred to as the 'learned Appellate Court'), in Criminal Appeal No. 48 of 2015, titled as Ramesh Jaswal vs. Urmila Walia (deceased) through her LRs and others. 2. The said appeal has been preferred by the petitioner against the judgment of conviction and order of sentence dated 26.08.2015, passed by the learned Judicial Magistrate, First Class, Court No.II, Hamirpur, District Hamirpur, H.P. (hereinafter referred to as the 'learned trial Court'), in Pvt. Complaint No. 47-I/2011, titled as Urmila Walia vs. Ramesh Chand Jaswal. 3. Vide judgment of conviction and order of sentence, referred to above, the learned trial Court has con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount was paid. The complainant after waiting for the statutory period, has filed a complaint under Section 138 of the N.I. Act. 6. On the basis of the documents annexed with the complaint, as well as, the preliminary evidence adduced by the complainant, learned trial Court has found a prima-facie case to proceed against the accused for the offence punishable under Section 138 of the N.I. Act, as such, he was summoned. 7. After securing the presence of the accused, the learned trial Court found a prima-facie case for the commission of offence punishable, under Section 138 of the N.I. Act, as such, notice of accusation was put to the accused, to which, he has pleaded not guilty and claimed to be tried. 10. Since, the accused has not plead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue i.e. any subsisting and legally enforceable liability. 15. To buttress his contention, learned counsel for the complainant has also relied upon the statement of CW-2 Gaurav Walia, who is Special power of attorney of complainant. 16. Highlighting the contradictions in the statements of CW-1 and CW-3, it has been prayed that the learned trial Court has wrongly convicted and sentenced the accused for the commission of offence punishable under Section 138 of the N.I. Act. 17. On the basis of grounds of revision petition, Mr. S.D. Gill, learned counsel appearing for the accused has prayed that the revision petition may kindly be allowed. 18. Per contra, Mr. Amar Deep Singh, learned counsel appearing for the complainant has opposed the pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... how his bonafides, let 5% of the cheque amount be deposited with the Himachal Pradesh State Legal Services Authority." 24. In compliance to the said order, compounding fee has been deposited. 25. In order to decide the controversy involved in the present petition, it would be just and appropriate for this Court, to discuss the evidence, so adduced by the parties before the learned trial Court, upon which, the learned trial Court has convicted the accused. 26. CW-1 is Mr. Ishkar Vivek, who has been working in the SBI Main Branch, Hamirpur. He has deposed that cheque Ext. CW-1/B was received in the bank for clearance and the same was forwarded to KCC Bank Didwin Tikker for clearance, but the same was received back unpaid. He has proved th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same was not encashed and the same was returned vide memo Ext. CW-1/C. The document Ext. CW-1/C was issued by the then Manager Sh. S.C. Sharma, who has since been superannuated. 30. This is the entire evidence on record. 31. The accused, in the present case, has denied that he has ever issued the cheque in question. However, the accused has neither adduced any evidence nor appeared in the witness box to depose as per the stand taken by him. The statement of accused recorded under Section 313 Cr.P.C does not fall within the definition of evidence as per Section 3 of the Evidence Act. In such situation, when the accused himself has not appeared in the witness box to depose about the stand as taken by him in the statement recorded under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the complainant. 35. When, the order of awarding compensation has not been assailed, then, the same cannot be questioned by the complainant, at this stage, i.e. at the time of deciding the revision petition. 36. Considering the peculiar facts and circumstances of the case that the accused has not only deposited the entire amount of compensation, but, also the compounding fee, the revision petition against the judgment of conviction is dismissed, however, the order of quantum of sentence is liable to be modified by reducing the substantive sentence from 12 months to the sentence of imprisonment till 'rising of Court'. Ordered accordingly. 37. With these observations, the revision petition stands disposed of. Pending applications, i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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