Bombay High Court
Amol @ Jolly Shrichand Kungwani vs The State Of Maharashtra Thr. Police ... on 22 December, 2018
Author: M. G. Giratkar
Bench: M. G. Giratkar
1 jg.revn 198.17.odt
THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
CRIMINAL REVISION APPLICATION NO. 198 OF 2017
Amol @ Jolly Shrichand Kungwani,
Aged 40 years, Occ. Business,
Proprietor of M/s Hemshree Wines,
situated at 618, Basement of
Parmanand Apartments,
Opp. Indora Police Chowky, Nagpur. ... Applicant
VERSUS
(1) The State of Maharashtra,
Through Police Station Officer,
Indora Police Station,
Nagpur.
(2) Kailash Dhanraj Batra,
Aged 36 years, Occ. Business,
R/o 52, East Wardhaman Nagar,
Nagpur. ... Non-applicants
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Shri A. Shelat, Advocate for the applicant
Shri H. R. Dhumale, Additional Public Prosecutor for the State/non-
applicant no. 1
Shri R. K. Bachwani, Advocate for the non-applicant no. 2
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CORAM : M. G. GIRATKAR, J.
Date of reserving the judgment : 13/12/2018. Date of pronouncing the judgment : 22/12/2018. Judgment The present revision is against the judgment of Judicial ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 ::: 2 jg.revn 198.17.odt Magistrate First Class which was confirmed by the Additional Sessions Judge, Nagpur.
2. The fact in dispute in short is as under :-
The complainant had given hand-loan of Rs. 50,000/- to the accused. The accused and complainant, both are businessmen. They are acquainted with each other. Due to financial difficulty of the accused, the complainant had given Rs. 50,000/- without charging any interest. Accused issued cheque of Shikshak Sahakari Bank Ltd., Kamal Talkies Chowk Branch, Nagpur for Rs. 50,000/- dated 8-7-2009. As accused has not repaid the said amount, therefore, cheque was presented on 11-7-2009. Said cheque was returned by the bank having remark "insufficient funds". Notice was issued to the accused directing him to pay amount of cheque. Accused deliberately not claimed the notice. Notice returned back. Thereafter complainant filed Summary Criminal Case No. 12844/2009 before the Judicial Magistrate First Class, Nagpur. Particulars/charge was explained to the accused. He denied the same. Complainant adduced his evidence vide Exhibit 24. Accused not entered into the witness box. After hearing both sides, Judicial Magistrate First Class convicted the accused for the offence ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 :::
3 jg.revn 198.17.odt punishable under Section 138 of the Negotiable Instruments Act and sentenced to suffer simple imprisonment till rising of the Court and to pay compensation of Rs. 1,00,000/- i.e. double the amount of cheque of Rs. 50,000/-, in default to suffer rigorous imprisonment for three months. The appeal was filed before the Sessions Court, Nagpur vide Regular Appeal No. 73/2013. Learned Additional Sessions Judge dismissed the same on 28-8-2017 and confirmed the judgment of the Judicial Magistrate First Class, hence, the present revision before this Court.
3. Heard learned counsel Shri Shelat for the applicant/ accused. (The applicant is hereinafter referred to as 'accused') Learned counsel Shri Shelat has pointed evidence of complainant. It is submitted that evidence of complainant shows that he is doing money lending business. He has not produced any accounts book to show the loan transaction. Learned trial Court has wrongly recorded its finding that accused has not discharged his burden in respect of presumption under Section 139 of the Negotiable Instruments Act. Learned counsel Shri Shelat has submitted that there is no need for the accused to adduce evidence. He may discharge his burden on the basis of materials already ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 ::: 4 jg.revn 198.17.odt brought on record. In support of his submission, he pointed out following decisions.
(1) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in (2008) 4 SCC 54, (2) M. S. Narayana Menon @ Mani Vs. State of Kerala and anr.
reported in (2006) 6 SCC 39 and (3) Sanjay Yadhavraoji Makode Vs. Suhas Prakashji Dhote reported in 2018 (3) DCR 24.
4. Heard learned counsel for the complainant Shri Bachwani and learned Additional Public Prosecutor Shri Dhumale for the State/ non-applicant no. 1. They have supported the impugned judgment. Learned counsel Shri Bachwani for the complainant has submitted that the complainant has proved that cheque was issued by the accused. There is no dispute about the signature. Complainant also proved the acknowledgment in respect of receipt of Rs. 50,000/-.
5. Learned counsel for the complainant has further submitted that the acknowledgment on the letterhead of the accused is proved on record. The burden is to be discharged by the accused and not by the complainant. Accused has not discharged his burden. He has not ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 ::: 5 jg.revn 198.17.odt entered into the witness box. The complainant has proved that he had given Rs. 50,000/- to the accused. Accused acknowledged the same on his letterhead and issued the cheque. Cheque was dishonoured. Complainant issued notice but said notice was not claimed by the accused. Necessary requirement is proved by the complainant. There is no merit in the revision, hence, it is liable to be dismissed. He has relied upon following judgments.
(1) K. Bhaskaran Vs. Sankaran Vaidhyan Balan and anr. reported in 1999(6) Scale 272, (2) Shanaz D'Souza Vs. Sheikh Ameer Saheeb and anr. reported in 2007(3) Mh.L.J. 324, (3) Mahesh Chandaikar Vs. Dattaram S/o Tato Chandaikar and anr. reported in 2009(2) DCR 185 and (4) Nitin s/o Bapurao Mankar Vs. Vyankatesh Housing Agency, Nagpur reported in 2010(6) Mh.L.J. 86.
6. Perused the record. The evidence adduced by the complainant shows that he was having familiar and cordial relations with the accused. Accused is proprietor of M/s Hemshree Wines. Accused was in financial difficulty, therefore, he advanced hand-loan of ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 ::: 6 jg.revn 198.17.odt Rs. 50,000/-. Learned counsel Shri Shelat has pointed out his examination-in-chief and submitted that the complainant is doing money lending business.
7. Complainant has not concealed anything from the Court. He has stated that he is doing money lending business. There is no evidence to show that the complainant advanced Rs. 50,000/- from his money lending business. The accused has not disputed his signature on the cheque and acknowledgment receipt. The cheque is at Exhibit 32 and acknowledgment is at Exhibit 33. Signatures of accused are not denied. Exhibit 33 is acknowledgment on the letterhead of the accused. This itself shows that accused has received Rs. 50,000/- from the complainant. There is no dispute that accused has not refunded amount of Rs. 50,000/-. Only defence appears to be that he had given the said cheque in the year 2003-04. The suggestions of accused are denied by the complainant. Nothing is brought on record to discharge the burden on the accused. The decisions cited by learned counsel for the applicant are not applicable to the case in hand.
8. In the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde (supra), Their Lordships have held that "the accused need not ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 ::: 7 jg.revn 198.17.odt examine himself to discharge the burden. He may discharge his burden on the basis of materials already brought on record."
9. In the present case, nothing is brought on record to discharge the burden. Other cited decisions are on the same footings, therefore, not applicable to the case in hand.
10. In the case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and anr. (supra), Hon'ble Apex Court has held that "signature in the cheque is admitted to be that of the accused. Presumption envisaged in Section 118 of the Act can legally be inferred that cheque may drawn for consideration on the date which the cheque bears. Section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it in discharge of any debt or liability. Burden is on the accused to rebut this presumption."
11. This Court in the case of Mahesh Chandaikar Vs. Dattaram S/o Tato Chandaikar and anr. (supra) has observed as under :-
It is pertinent to note that not only the learned Magistrate but even the learned Additional Session Judge has not accepted the defence taken by the accused. This fact assumes more importance because the accused has to state as to ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 ::: 8 jg.revn 198.17.odt why he had issued the cheque to the complainant. Therefore, the defence taken by the accused in the course of cross-
examination of the complainant and during his evidence, appears to be an after-thought. I am unable to accept the submission of Mr. Sardessai that the complainant was bound to state in the complaint and in his examination-in-chief the details about his share in the property and why the cheque of Rs. 5 Lacs, was issued in his favour by the accused. In terms of sections 118 and 139 of the Act, the presumption operates and the accused is expected to rebut the presumption more particularly under Section 139 of the Act either by cross- examination of the complainant and his witnesses or by leading defence evidence. There is an initial presumption that the cheque was issued for consideration, therefore, mere fact that the complainant did not specify his share in the property either in the complaint or in his examination-in-chief, would not be a ground to disbelieve the complainant.
12. In the case of Nitin s/o Bapurao Mankar Vs. Vyankatesh Housing Agency, Nagpur (supra), this Court has held that the accused has to discharge presumption under Section 139 by adducing satisfactory evidence.
13. In the present case, nothing is brought on record to show that accused has not received the amount of Rs. 50,000/-. Nothing is on record to show that it was a loan transaction. The acknowledgment, Exhibit 33 on the letterhead of the accused itself shows that he has received Rs. 50,000/- from the complainant. He has not denied his signatures on cheque and acknowledgment, Exhibit 33. Learned trial ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 ::: 9 jg.revn 198.17.odt Court as well as first appellate Court rightly recorded their findings. There is no perversity or illegality in the judgment of both the Courts. Hence, revision is liable to be dismissed. Revision is, accordingly, dismissed.
JUDGE
14. Heard Advocate Shri Shelat for the applicant. He has submitted that amount of Rs. 50,000/- is deposited before this Court and Rs. 10,000/- is deposited before the first appellate Court. The applicant be permitted to deposit Rs. 40,000/- before this Court.
15. Registry is directed to accept the amount of Rs. 40,000/-. Complainant/non-applicant no. 2 is at liberty to withdraw all amount.
JUDGE wasnik ::: Uploaded on - 22/12/2018 ::: Downloaded on - 25/12/2018 23:30:48 :::