9911796707
TMI Blog2007 (3) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... final and binding on both the parties. 2) The above scrutiny and finalization shall be completed before 31.1.1996. Until such time, we shall not raise any dispute against each other. 3) Till such finalization, Mr. Shankar shall handover a cheque (cheque No. 551661 dated 31.1.96) for ₹ 7 lakhs to Mr. Suresh Kumar as security deposit. 4) If the share of profits for Mr. Suresh Kumar is more than 7 lakhs, he shall encash the cheque and shall also receive the balance amount from Shankar forthwith. If the share of profits is less than 7 lacs, Suresh Kumar shall return the said cheque and Shankar shall pay Suresh Kumar a draft for the amount of profits determined. If any profit is due to Shankar, Suresh Kumar shall pay the same to Shankar forthwith. 2. Pursuant thereto or in furtherance thereof, the respondent allegedly handed over a post dated cheque for a sum of ₹ 7,00,000/- to the appellant. As the said cheque was dishonoured on presentation, a complaint petition was filed by the appellant inter alia alleging: 3. ...Further the accounts in the Bank are joint accounts and the cheques can be drawn only by both of partners on any account and not by one partner. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal is partly allowed thereby the finding of conviction against the accused under Section 138 of Negotiable Instrument Act is confirmed and the sentence is modified to the effect that the appellant/ accused should pay a fine of ₹ 5,000/- (Rupees five thousand only) under Section 138 of Negotiable Instrument Act and in default to undergo three months simple imprisonment and the order of the learned Magistrate in awarding compensation is set aside. There is no order as to cost. The appellant/ accused will be entitled to get back the amount deposited by him less the fine amount, now imposed, and entitled to get back the bank guarantee and other security deeds filed by him in this case after the time for revision or appeal is over or after the revision or after if any preferred is over. 5. Appellant herein preferred a revision application before the High Court which was marked as R.C. No. 1213 of 2001 whereby and whereunder modification was made by the appellate court in relation to the quantum of fine. Respondent filed a criminal revision against the said order which was marked as Criminal R.C. No. 713 of 2001. The High Court dismissed both the civil revisions confirming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re of the profit in the partnership business was still to be ascertained; (ii) the cheque was issued in anticipation of the accounts to be audited by a named auditor; (iii) Only upon finalization of the accounts by the auditor, the debt or liability of the respondent could have been clearly ascertained so as to make him liable for payment of any amount pursuant thereto or in furtherance thereof. 9. In the instant case, it was urged, as the appellant himself in his complaint petition categorically stated that the actual amount of the liability of the respondent was yet to be ascertained, the courts concerned must be held to have committed a manifest error in recording a judgment of conviction. It was further submitted that the appellate court and consequently, the High Court also committed a manifest error inasmuch as they failed to take into consideration that the burden of proof on the accused can be discharged by showing only preponderance of probabilities; the standard of proof not being the proof beyond all reasonable doubt. Our attention has further been drawn to the fact that although the learned Trial Judge had directed payment of compensation and fine of ₹ 7,05,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of Section 357 CrPC would make the position clear. 11. In the present case, sentence of fine has also been imposed, as indicated in the earlier part of this judgment. Out of the fine, a sum of ₹ 1000 each had been ordered to be given to the three injured persons, namely, Dalip Singh, Amarjit Kaur and Gurmeet Kaur. The balance amount is to go to the legal heirs of Jagjit Singh. We had heard the learned Counsel for both parties on this aspect. Learned Counsel for the appellant submitted that Gurmeet Kaur lost both her parents as well as her brother in the incident and now she is alone and would have become of marriageable age or may have to start some work of her own. She would need some money. In case she cannot be compensated, the amount of fine may be enhanced to some extent. Learned Counsel for the respondent has, however, submitted that out of seven acres of land belonging to his father, the same has been divided into three equal shares and some of it is also under mortgage and he has got two daughters and a son and his wife. He has also submitted that whenever the respondent was released on parole he met Gurmeet Kaur and his wife also keeps on going to meet her. Their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been issued not in discharge of a debt but by way of a security pending determination of his liability by an auditor, the matter would have been different. In such an event, the court could have arrived at a finding that the cheque having been issued on the basis of an anticipated profit which by itself did not create any liability in presenti and the result of the audit might have gone either way, no case under Section 138 of the Act was made out. But, the same is not the case here. 15. The question which now arises for consideration is as to whether any case for awarding a substantial sentence has been made out. We do not think so. Grant of compensation, in our opinion, would subserve the purpose. Appellant may also file a suit for damages and/ or for other reliefs. We do not know what was found by the auditor upon scrutiny of the books of account of the partnership firm. The relationship between the parties is not disputed. Respondent has not been charged with any fraudulent action. He had a probable defence. Appellant furthermore had not preferred any appeal against the judgment of the learned Trial Judge for enhancement of the sentence. It may be that quantum of compensation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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