Bombay High Court
Sheikh Lal Hiraji Bagwan (Dead) Through ... vs Buldana Urban Coop. Credit Society Thr. ... on 22 February, 2016
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL REVISION APPLICATION NO. 46 /2013
Sheikh Lal Hiraji Bagwan
Dead : Through LRs:
1. Sayarabee wd/o Shaikh Lal
Aged 65 years, occu: Household
2. Sheik Lukman s/o Sheikh Lal
Aged 51 occu: Labour.
3. Faimidabee Syed Khaja Bagwan
Aged 49 years, occu: Household.
4. Sheikh Irfan s/o Sheikh Lal
Aged 45 years, occu: Labour.
5. Sheikh Nisar Sheikh Lal
Aged 40 years, occu: Labour.
6. Shakilabee Sheikh Hamid Bagwan
Aged 38 years, occu: Household work.
7. Nasreenbee Sheikh Rafique Bagwan
Aged 35 years, occu:Labour.
All R/o Madh, Tq. & Dist. Buldana. .. ...APPLICANTS
v e r s u s
1) Buldana Urban Coop. Credit Society
Through Its Loan Superintendent
Buldana, Tah. & Dist. Buldana.
2) State of Maharashtra
Through Police Station Officer
Police Station, Buldana, Dist. Buldana. .. ...RESPONDENTS
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Mr A.J. Thakkar, Advocate for LRs of applicant
Mrs. Sonali Saware, Advocate for respondent no.1
Miss N.P. Mehta, A.P.P. for respondent no.2
............................................................................................................................
CORAM: A.B.CHAUDHARI, J
.
RESERVED ON: 29th January, 2016
PRONOUNCED ON: 22nd February,2016
ORAL JUDGMENT:
Being aggrieved by the judgment and order dated 2nd March, 2013 made by the Principal Sessions Judge, Buldana in Criminal Appeal No. 17/2008 dismissing the Appeal, thereby confirming the judgment and order dated 24th June, 2008 of the Judicial Magistrate, First Class, Court No.3, Buldana, in Summary Complaint Case No.1573/2005, by which the revision applicant/accused was sentenced to suffer simple imprisonment for a period of six months and to pay a fine of Rs.
1,40,000/-, the instant Revision Application was filed by the original accused/ applicant.
2. In support of the Application, Mr. A.J. Thakkar, learned counsel for the applicant/accused submitted that the Courts below have committed error in convicting the applicant for the offence punishable under Section 138 of the Negotiable Instruments Act (henceforth abbreviated to 'N.I. Act'), in the absence of any legal liability or legally ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 ::: revn.46.13 3 enforceable liability. According to him, the blank cheque given by the applicant was misused by the respondent No.1-Credit society as the same was for security of loan. That apart, according to the learned counsel for the applicant, Exh. 60 and Exh. 61 were the two documents issued by the respondent no.1-society itself, informing the Regional Transport Office, Buldana, that the entire loan liability of the vehicle that was purchased by means of loan, was discharged and about the termination of hypothication agreement, on 11.4.2005. These two documents Exhs. 60 and 61 were nothing but an admission on the part of the respondent no.1-society, the benefit of which ought to have been given to the applicant. Learned counsel for the applicant then contended that for no reason, the lower Appellate Court relied on Exh.
45 and Exh.65 i.e. Recovery certificate from Assistant Registrar, Cooperative Societies, Buldana, when these documents were never proved in accordance with law. The Courts below could not have relied on those documents in the absence of legal proof thereof and, therefore, the entire approach of the Courts below in recording the finding of guilt against the applicant, is illegal. He, therefore, prayed for setting aside both the impugned judgment and orders. The learned counsel for the revision-applicant, then, contended that even according to respondent no.1-society when the case was filed in the year 2005 the age of the ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 ::: revn.46.13 4 applicant was shown as 70 years and he died during the pendency of this Criminal Revision. The Courts below awarded six months' simple imprisonment and compensation. Despite the death, the legal heirs would like to contest the finding of conviction.
3. Per contra, Mrs. Sonali Saware, learned counsel for the respondent no.1-society supported the impugned judgments and orders.
She submitted that both the Courts below have concurrently found that the cheque given by the applicant to the respondent no.1-society was for legally enforceable liability and that is a finding of fact which cannot be disturbed in the revisional jurisdiction. She then vehemently contended that the Courts below have marshalled the evidence on record and thereafter came to a conclusion that the applicant was guilty of the offence u/s 138 of the N.I. Act. She then contended that the presumption arose in the instant matter which was not at all rebutted by the revision-applicant and, at any rate, it was admitted fact that the amount was taken by way of vehicle loan, by the revision-applicant and, therefore, it could not be said that it was not a legally enforceable liability. She invited my attention to the reasons recorded by the Courts below in respect of the documents, namely, the recovery certificates etc and submitted that the reasons are not perverse and consequently no ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 ::: revn.46.13 5 interference is required to be made in the revisional jurisdiction.
4. I have gone through the impugned judgment and orders passed by the Courts below and the reasons given for conviction of the applicant for offence punishable u/s 138 of the N.I. Act. At the outset, I find that the Courts below have recorded concurrent finding of fact on the legally enforceable liability of the applicant. Insofar as the submission about the document submitted to R.T.O. about 'no liability' is concerned, I find the discussion in paragraph nos. 12 and 13 of the trial court's judgment. I have gone through the said discussion and quote the relevant portion thereof, as under :
"12. No doubt the accused can rebut the presumption through cross-examination of the complainant and can establish the fact that no legally enforciable debt or liability was outstanding against him. In the light of the ratio laid down in the above mentioned authorities I have considered the cross- examination of Prashant (C.W.1) and the documentary evidence brought on record by the complainant and accused. On perusal of Exh.60 and 61 dtd. 11/04/05, it is clear that the complainant has admitted that accused had repaid the entire loan amount and hence ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 ::: revn.46.13 6 prima facie presumption raised against accused under section 118(a) of the Act that the cheque was issued in discharge of debt or liability is rebutted and the burden shifted on the complainant to prove that the cheque was issued in discharge of debt or liability. On this point learned counsel for the complainant Shri Khatri argued that, to prove that legally enforceable liability was existing against accused on the date of issuance of cheque, the complainant has filed on record the statement of accounts at Exh.23 and recovery certificate dtd. 16/01/2006, Exh. 65 these documents are subsequent in time to Exh.60, 61 and present complaint, and these are not challenged by accused. He further argued that not only this but Prashant (C.W.1) has deposed before the Court that even if letter at Exh.60 and form No.35 at Exh.61 was issued to RTO still these documents were issued as the vehicle was auctioned to some third person and vehicle was to be handed over to him free from any liability. More over through Prashant (C.W.1) have admitted issuance of Exh. 60 and Exh.61 still he had time and again stated that issuance of said letter and form No.35 does not mean that entire loan amount of accused is discharged.
13. On perusal of the entire oral as well as documentary evidence on record it appears that admittedly letter Exh. 60 and from No.35 at Exh.61, ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 ::: revn.46.13 7 appears to have been issued by the complainant on 11/04/05. It is the admitted position on record that proceeding for obtaining recovery certificate had been initiated by the complainant against the accused before competent authority. The copy of application filed by the complainant in those proceeding is filed on record by the accused Exh.44 and the true copy of recovery certificate is filed on record by the complainant which is at Exh.65. After perusal of the certificate it appears that the accused was present in the said proceeding on 22/12/05 and on 06/01/2006 and he had admitted the loan amount. It is not in dispute that the said certificate was issued by the competent authority on 16/01/06. It is the defence of the accused that said certificate is obtained malafidely by concealing material facts however it is not the case of accused that the said certificate was challenged by them before any appellate authority. Moreover the vehicle of the accused was auctioned and letter at Exh.60 is issued by the complainant on 11/04/05 and the legal notice of the present proceedings was received by the accused on 22/08/2005 and accused appeared in the same on 20/12/2005. From recovery certificate at Exh.65 it appears that accused was present in those proceeding on 22/12/05 and 06/01/06 i.e. after knowledge about the pendency of present proceeding and inspite of having sufficient opportunity he neither raised ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 ::: revn.46.13 8 objection before competent authority while recovery certificate was being issued and on the contrary he admitted the loan amount. He also did not reply the legal notice dtd. 19/08/05 at Exh.24 and had raised defence of discharge of loan. Further the statement of account filed on record by the complainant at Exh.23 are not challenged by the accused and not a single suggestion was given to the witness Prashant (C.W.1) to that effect. Also the auction of vehicle of the accused is not disputed. Prashant (C.W. 1) had stated during his cross-examination that the auction price of the said vehicle was Rs. 95,000/-. The said version of the accused is corroborated by the statement of accounts filed at Exh.23, and the same are not challenged by the accused. It appears from the extract of account Exh.23 that even after receiving the auction money by the complainant Rs.1,50,136/- was outstanding against the accused and it is not the case of the accused that he has deposited the remaining outstanding amount by any other mode with the complainant. Hence it cannot be said that the accused had repaid the entire loan amount."
The appreciation of the evidence by the learned trial Judge as above, is in consonance with the settled norms and I do not find any perversity on his part in rejecting the theory about the alleged ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 ::: revn.46.13 9 discharge of the liability. There is a reason to believe that the clearance certificates issued to by the RTO were issued, in order to sell the vehicle with a view to get at least some money from the sale of the vehicle. I, therefore, find no substance in the submission that the liability was already discharged as contended by the learned counsel for the applicant.
5. The submission made by the learned counsel for the applicant that the recovery certificate issued by the Assistant Registrar Cooperative Societies should not have been relied upon by the learned trial judge in the absence of any proof and according to law, is not without any substance. I have perused the recovery certificate which is a photo copy of the recovery certificate and which has not been proved by any witness. I do not think that the said recovery certificate, the photocopy could be utilised as evidence for the purpose of proving the offence. But then as earlier discussed by me, the respondent
-complainant by documentary as well as oral evidence, has fully proved the liability of the applicant for non-payment of the amount. The finding by the trial judge reached on the basis of account extract, is based on the evidence, which has been affirmed by the appellate Court.
I do not think that the said finding of fact should be disturbed by me in ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 ::: revn.46.13 10 the revisional jurisdiction.
6. To sum up, the finding of conviction concurrently recorded by both the Courts below is legal, correct and proper. However due to death of the original revision-applicant, the order awarding sentence will have to be removed. In the result, I make the following order:-
ORDER
(a) Criminal Revision No. 46/2013 is dismissed.
(b) The impugned judgment and order dated 2nd March,2013 made by the Principal Sessions Judge, Buldana and dated 24.06.2008 in Summary Complaint Case No.1573/2005, finding the applicant guilty of offence under section 138 of the N.I. Act, is confirmed. However due to death of Sheikh Lal Hiraji Bagwan (the revision applicant), sentence of six months simple imprisonment awarded by both the Courts below is set aside.
JUDGE sahare ::: Uploaded on - 22/02/2016 ::: Downloaded on - 31/07/2016 06:13:50 :::