MODEL DRAFT

IN THE COURT OF LEARNED SESSIONS JUDGE,

Criminal Revision No.
PANCHKULA.
of 2018
Rakesh Gupta s/o Sh. Rajkumar Gupta rlo H.No.----, Sector---. |
,Panchkua
Vs . Petitioner/Complainant
Jaswant Singh s/o Sucha Singh, r/o Flat No.--...,GH-2,
Sector---, Panchkula.
Revis ion petition under
- - -
...Respondent
Section 397 Cr.Pr
-Apartments,
enhancement of sentence and compensation.
RESPECTFULLY SHOWETH:

1. That the petitioner had filed a criminal complaint against the respondent
for the commiss ion of offence punishable under section 138 of the Negotiable
Instrument Act, 1881 on account of dishonour of Cheque No. ---. dated
10.05.201lamounting to Rs 1,40,000/-.
2. That the case of the petitioner was that he advanced friendly loan to the
respondent on 22.06.2010by way of cash of Rs 15 lacand one cheque amounting
toRs 2.40 lacs inthe name of ---.-on the asking of the respondent as
also accompanying the respondent.

19
ld..Section 397(2).
20 Jd.. Section 397 (3).
21
Thakur Das v. State of M.P., (1978) 1SCC27.
286
 Criminal Appeal &Revision
lieu of the (Criminal Pleadings)
3.ThatIn friendly loan, the respondent gave documents of two
.--s/oHOUSING SOCIETY as security. The shares were in the
shares
of
DameofS h
and Sh.
e_pondemt haanded over two GPA, s/o Sh. espectively. The
CXCCUted Sh. Notarised
by -----slo ---and Sh. --. will. Affidavits, indemnity Bonds
etioner/eomplainant.
ett. S/o Sh. --. in the favour of
4 That due to dispute between Sh.
so
Sh. both the persons cancelled the s/o and Sh.
petioner/complainant. As such an MOU dated GPA30.04.2011(Ex.
issued in favourC-7)of the
was
executed hetween the petitionerlcomplainant
therespondent paid Rs 1lacs as cash and issuedand2the
post respondent.
dated chequesAsie. MOU,
per Cheque
481433 dated 10.05.2011
No amounting to Rs 1,40 lacs and cheque bearing No.
481434dated 15.06.201l amounting to Rs 15 lacs. The respondent tookoverall
the original papers ie. GPA, indemnity bond, will, etc, which were aso handed
as security. As per the
by the respondent assurance of the
Pues were presented by the petitioner/complainant but the samerespondent, the
were returned
back. The petitioner/eomplainant filed the complaint.
s That the respondent, in order to wriggle out of the offence committed,
mONeda false complamt before Superintendent of Police, Panchkula (Mark A)
after receiving the notice from the Hon'ble Court. However, the complaint filed
efore police was closed after investigation as the aleged offences against the
petiioner/complainant were not proved.
6. That thereafter the respondent again moved aplication before the laqua
Magistrate, Panchkula under section 156 (3) Cr. PC for registration of FIR
against the petitionerlcompla inant. The FIR No. 443 dated 30.08.2013 u/s
417418/420/467/468/471/120B IPC P.S sector-5, Panchkula (Ex. C-10) was
registered on the directions of the Hon'ble Court. However, after due
nvestigation, the same was cancelled (Ex. C-11),
7. That after being failed to mislead the police and Hon'ble Court, the
respondent took various defences during the trial such as respondent had no
know kdge of -HOUSING SOCIETY and he was induced by
peti ioner/comp la inant and one--.to purchase shares in aforesaid society and
Tor this purpose he had issued the cheques but Sh. -and Sh.-.. --Were
hot the members of the society, the respondent had paid Rs 17.40 lacs(Rs 15 lacs
+Rs 140 lacs + Rs 1kac) as purchase money for 2 shares. The GPA's will.
ndemnity bondetc were not issued as security by respondent, the signatures on
e cheques issued by the respondent have been forged and even the handwriting
On the body of the cheques has aso not been filled by the respondent, the MOU
oes not bear the signatures of the respondent, a complaint was submitted by Sh.
--and Sh. -for the fraud committed by the petitioner/compla inant
and one ,the respondent was not present in Panchkula on 22.06.2010 ete
8. That the petitionerlcompla inant had established the ingredients of the
287
 (Criminal Pleadings )
Criminal Appeal& Revision
offence punishable under section 138 of the Negotiable Instruments Act, 1881
and the respondent was hekd guilty by the Ld. Trial Court and the respondent has
been sentenced to undergo simpk imprisonment for a period of five months and
to pay fine of Rs 1,40,000/- as compensation to the petitioner within a period two
months failing which respondent has been directed to undergo five months
sinpk imprisonment.
9. That the petitioner is aggrieved by the judgment dated 16.02.2018 to the
lenient view in awarding
extent that the Ld. Trial Court has taken a very sentence
great preadi
andcompensation and thus the finding of the Court has caused
the petitioner/complainant and the punishment as well as compensation should
enhanced.
10. That it has been proved before the Ld. Trial Court that the respondent
had taken loan in the year 2010 and till date he has neither returnedthe same nor
showed any intention toreturn even during the pendency of the Trial Court Th
Hon'be Supreme Court in R. Vijayan v. Babbyand another, reported in (2012)
1SCC 260, has held that as the provis ions of Chapter XVII of the Negotiahe
Instruments Act strongly lean towards grant of reimbursement of the loss hy wa.
of compensation, the courts should, unless there are special circumstances. in al
cases of conviction, uniformly exercise the power to levy fine upto twice the
cheque amount (keeping in view the cheque amount and the simple nterest
thereon at 9% per annum as the reasonable quantum of loss) and direct payment
of such amount as compensation. Direction to pay compensation by way of
restitution in regard tothe loss on account of dishonour of the cheque should be
practical and realistic, which would mean not only the payment of the cheque
amount but interest thereon at a reasonable rate. Uniformity and consistency in
deciding similar cases by different courts, not only increase the credibility of
cheque as anegotiable instrument, but also the credibility of courts of justice.
11. That the respondent has made every attempt to mislead the Ld. Tral
Court by rais ing false defences. The petitioner had suffered for more than seven
years. The Ld. Trial Court should have weighed the hardship caused to the
petitioner while passing the sentence.The petitioner had been contesting for such
a long period. Thus, the sentence of five months is liable to be enhanced to the
maximum.

12. That it a settled law that the punishment should be commensurate to lre
offence committed by the accused. In the present case, the respondent had been
running away from his liability and coukd not prove the plea of alibi Thereior
the respondent should have been punished with the imprisonment of amount
two yeasot
and should have been directed to pay fine to the extent of double the
cheque as compensation.
In view of the submissions made above, it is most humbly and
respectfully prayed that this Hon'ble Court may be pleased to:
 Criminal Appeal & Revision (Criminal Pleadings)
i) Allow the revision petition and the sentence awarded to
the respondent by the Learred Judic ial Magistrate, First
Class, Panchkula in Nact No,-.. of 2013 dated
16.02.2018 be enhanced:
i) Enhance the fine of Rs 1,40,000/- imposed upon the
respondent to double the cheque amount ;
iü) Grant any other relief which this Hon'be Court may
deem fit in the facts and circumstances of the present
case.

Petitionerleomplainant
Pace
Dated
through
(-
Advocate
Counsel for the Petitioner/complainant

revision petition is supported by the affidavit of thePetitioner asgiven below.

"A

SESSIONS JUDGE, PANCHKULA.

IN THE COURT OF LEARNED
Criminal Revision No. of 2018

Vs Jaswant Singh
Rakesh Gupta
Gupta, R/o house no.---Sec.---,
Affidavit of Sh. Rakesh Gupta Slo Sh. Rajkumar
Panchkula
named deponent do here by solemnly affirm and declare as under
I, the above
That for the sake of brevity, the contents of the criminal revis ion are not
1. the
being reproduced hereunder in this affidavit. However, the contents of
parcel of this affidavit.
criminal revision may kindly be read as part and
2 That the contents of the para No. I to-- 0f the crminal
revision are correct
relevant has heen
to my know ledge and beliet. No part of t s fase and nothing
concealed therein.
Place:
Deponent
Dated
VERIFICATION:
 Chiminal Appeal & Revision (Criminal Pleadings)
Verified that the contents of para No.I to 2 of the
are true and correct to the hest of my knowledge and belief. No above
NO part
and nothng has beenconcealed there in.
of it affrlfakeavt
is
Place:
Dated Deponent