Bombay High Court
Vishnu Ramchandra Naik, Presently In ... vs Nilkanth Rajaram Naik on 11 June, 2024
2024:BHC-GOA:929 CRIR.30 OF 2022.
Shakuntala
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL REVISION APPLICATION NO. 30 OF 2022
VISHNU RAMCHANDRA NAIK,
PRESENTLY IN JUDICIAL
CUSTODY, THR. HIS WIFE
RANJANA VISHNU NAIK .....APPLICANT
VERSUS
NILKANTH RAJARAM NAIK .....RESPONDENT
Mr. L. Joseph Deva, learned counsel for the Applicant.
Mr. P. A. Kamat, learned counsel for Respondents
CORAM: BHARAT P. DESHPANDE, J.
RESERVED ON: 08th May, 2024
PRONOUNCED ON: 11th June, 2024
ORDER
1. Applicant by way of present revision is challenging the concurrent indings of the Courts below wherein the applicant was found guilty for the ofense punishable under Section 138 of Negotiable Instruments Act and accordingly, sentenced to pay the compensation and to sufer imprisonment.
2. Heard Mr. L. Joseph Deva, learned counsel for the appellant and Mr. P.A. Kamat, learned counsel for the respondent.
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3. Apart from oral submissions, written arguments are iled on behalf of the applicant.
4. Mr. Joseph Deva, learned counsel appearing for the applicant would submit that irst of all both the Courts below failed to consider that there was no legally recoverable debt existing at the time of iling of the complaint and that part payment was made by the applicant/accused which has not been considered at all. He submits that the applicant made it very clear while answering statement recorded under Section 313 of Criminal Procedure Code (Cr.P.C.) that he made part payment. He would submit that unfortunately the applicant/accused failed to lead any evidence to that efect, however, this Court could consider of granting opportunity to the applicant to lead additional evidence in order to do substantial justice. He submits that there were two more complaints iled by the respondents in respect of the same transaction, however, the same has not been considered by the Courts below. He then claimed that the respondent would be clearly dealing with money lending business and hence, in absence of any license the case of the respondent/complainant ought to have been dismissed. Page 2 of 11
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5. In support of the submissions, the Applicant placed reliance on the following decisions (a) Dwarikesh Sugar Industries Ltd. Vs. Prem Heavy Engineering Works Ltd.,1997 (6) SCC 450; (b) Angu Parameswari Textiles(P) Vs. Sri Rajam & Co. 2001 Company Cases Vol. (105) 186; (c)Shiju K Vs. Nalini, MANU/KE/2737/2015; (d)Pawan Enterprises Vs. Satish H. Verma, 2003 (2) ALD Cri 20; (e) M/s Alliance Infrastructure Project Pvt. Ltd. And Ors. Vs. Vinay Mittal in Crl.M.C.No.2224/2009 dated 18.01.2010; (f ) Joseph Sartho Vs. Gopinathan Nair, 2009 (2) Crimes 463 (Kerela); (g) Rahul Builders Vs. Arihant Fertilizers & Chemicals and Anr.(2008) 2 SCC 321; (h)Damodar Prabhu Vs. Sayyed Babalal H., 2010 (5) SCC 663
6. Per contra, Mr. P. A. Kamat learned counsel for the respondent would submit that the indings of the Courts below needs no interference, as the case was established with regard to the transaction and supported by the agreements executed by the parties. A demand notice was issued to the accused when the cheque was return unpaid, however, there was no response. He submits that there is absolutely no defence raised by the applicant before the Trial Court. In fact, he admits about the Page 3 of 11 11th June 2024 CRIR.30 OF 2022.
loan transaction and that there is no material brought on record with regard to money lending activities.
7. Rival contentions fall for consideration.
8. he respondents/complainants iled a complaint under Section 138 of Negotiable Instruments Act claiming therein that the accused requested for inancial help to the tune of Rs.5,00,000/-(Rupees Five Lakhs only) somewhere in October 2016 and accordingly, the complainant transferred the said amount by cheque dated 10.10.2016 into the account of the accused. At that time, the accused along with his wife executed consent terms agreement dated 10.10.2016, thereby agreeing to repay the said amount. Similarly, the accused handed over two cheques as collateral security amounting to Rs.3,00,000/- (Rupees hree Lakhs only) and Rs.2,00,000/- (Rupees Two Lakhs only), respectively, in favour of the complainant. he wife of the accused also handed over two cheques as additional collateral security as relected in the agreement. he accused and his wife expressly agreed in the agreement dated 10.10.2016 that incase of failure on part of the accused to repay the said amount of Rs.5,00,000/-(Rupees Five Lakhs only) within one year, the Page 4 of 11 11th June 2024 CRIR.30 OF 2022.
complainant is authorised to deposit both the cheques issued by the accused as also that of the wife of the accused for the purpose of recovery of the loan.
9. he accused failed to repay the said amount within the stipulated period and accordingly, the complainant deposited the cheques issued by the accused as collateral security and the same were returned unpaid for funds insuicient. On intimation to the accused, he immediately approached the complainant and executed an agreement dated 04.03.2018 and requested for extension of time till 30.04.2018. At the same time, accused issued two fresh cheques amounting to Rs.5,00,000/-(Rupees Five Lakhs only) in favour of the complaint, however, on one cheque there was some error in the writing of the amount. he complainant then again tried to contact the accused after the expiry of said date i.e. 30.04.2018 and inally, the accused issued another cheque dated 14.05.2018 for an amount of Rs.5,00,000/-(Rupees Five Lakhs only) towards the repayment of the entire amount. he earlier two cheques were returned to the complainant.
10. he complainant then deposited the cheque of Page 5 of 11 11th June 2024 CRIR.30 OF 2022.
Rs.5,00,000/-(Rupees Five Lakhs only) dated 14.05.2018 for encashment, however, it was returned unpaid. A legal notice was issued to the accused dated 25.05.2018 asking him to pay the amount within a period of 15 days. here was no response and accordingly, the complaint was lodged before the concerned Magistrate.
11. he complainant was examined and accordingly, notice was issued to the accused who appeared and then he was allowed to cross examine the complainant. he statement of accused was recorded under Section 313 Cr.P.C. wherein the accused admitted that he took a loan of Rs.5,00,000/-(Rupees Five Lakhs only) from the complainant. He also admitted that there was an agreement executed between the parties wherein cheques were issued for collateral security. Infact, most of the questions put to the accused in connection with evidence of the complainant are admitted. However, with regard to the cheque in question dated 14.05.2018, accused gave a strange answer that he is not aware of the same. He admitted about the receipt of notice issued by the complainant to him and inally claimed that he made part payment.
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12. he complainant has placed on record the agreements, the cheque in question, the legal notice. he cross examination of the complainant nowhere suggests about the denial of any transaction or even the signature of the accused on the cheque. Admittedly, the accused failed to step into the witness box.
13. hough, it is claimed by the accused while answering questions put to him under Section 313 Cr.P.C. that he made part payment, no such questions were put to the complainant during cross examination. It is also clear that no evidence has been brought on record by the accused regarding such part payment, except his statement made to the questions put to him under Section 313 Cr.P.C. he accused could have stepped into the witness box in order to prove such part payment, if any.
14. Once the signature on the cheque is not disputed and speciically the agreements executed between the parties as well as loan transaction is admitted by the accused, presumption arises under Section 139 of the Negotiable Instruments Act in favour of the complainant. It is well settled that such presumption cannot be rebutted only by denial or by answering questions put to the accused under Section 313 Cr.P.C. Page 7 of 11
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15. he contentions of the learned counsel for the applicant is that on the day of the ofence the accused was not liable to pay Rs.5,00,000/-(Rupees Five Lakhs only) to the complainant and therefore, the complainant has failed to prove the aspect of legally recoverable debt, cannot be accepted for the simple reason that cross examination of the complainant no where suggests that any part payment was made prior to iling of the complaint.
16. Once the agreement is admitted which clearly speaks about advancement of loan by the complainant to the accused, there was no further need for the complainant to establish anything else. he loan amount was handed over to the accused by a cheque which was encashed by the accused and the same has been acknowledged in the irst as well as second agreement executed between the parties. hus, the onus was on the accused to rebut such presumption under Section 139 of Negotiable Instruments Act. By only saying that he made part payment, in answering to question put to him under Section 313 of Cr.P.C. is not suicient enough to rebut such presumption. First of all such questions were not put to the complainant and secondly, no evidence has been brought on record by the accused about such part payment. hus, when the accused admit that he obtained Page 8 of 11 11th June 2024 CRIR.30 OF 2022.
loan from the complainant and failed to reply to the legal notice, it appears that there is no probable defence raised by the accused in order to rebut such presumption.
17. he written submissions iled on behalf of the applicant is admittedly discussing about aspects which are not raised before the Trial Court or even before the First Appellate Court. herefore such grounds, in absence of any material placed on record cannot be entertained in the revisional jurisdiction which is otherwise limited.
18. It is contended by the applicant that other cases were iled by the complainant, however, during cross examination of the complainant no such material has been brought on record. he accused who failed to step into the witness box, cannot now be allowed to agitate such grounds including the contentions regarding provisions under the of Money Lenders Act. Under such circumstances, the observations of the Apex Court in the case of Damodar Prabhu Vs. Sayyed Babalal H., 2010 (5) SCC 663 will not be of any help to the applicant.
19. It is further claimed in the written arguments that the complainant forced the accused to issue cheque of Rs.5,00,000/- Page 9 of 11
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(Rupees Five Lakhs only) instead of Rs.4,25,000/-(Rupees Four Lakhs Twenty Five housand only) which was actually due and payable and therefore, the said cheque was invalid. Unfortunately, no such material was brought before the Trial Court or even the First Appellate Court and thus, such contention cannot be looked into for the irst time in the revisional jurisdiction.
20. Another contention is that during the pendency of the present case, accused paid Rs.50,000/-(Rupees Fifty housand only) which has not been considered by the Courts below. Again this aspect cannot be considered for the irst time as subsequent payment will not absolve the accused from the liability as the ofence stands completed on the expiry of 15 days period from the date of legal notice. herefore, subsequent payment, if any, could be adjusted in the compensation awarded by the Courts below. his aspect was considered by the First Appellate Court and rightly so and accordingly such arguments is of no substance.
21. In Govind Prabhu Gaonkar Vs. Rajendra Warik, 2023, (1) Goa Law Times 230, this Court discussed about the provisions Page 10 of 11 11th June 2024 CRIR.30 OF 2022.
of Money Lending Act and observed that the transaction cannot be labelled as money lending activity unless, the condition as found in Section 2(k) of the said Act are fulilled and the case is not covered under the exceptions. In the present matter, there is absolutely no material brought on record before the Trial Court that the loan transaction was infact coming within the ambit of Money Lender's Act. he agreements executed by the parties would clearly go to show that it was a friendly loan of Rs.5,00,000/-(Rupees Five Lakhs only) and the accused agreed to repay it within a period of one year even without any interest. Even the cheque in question is of Rs.5,00,000/-(Rupees Five Lakhs only) i.e. the initial loan amount.
22. he learned Trial Court as well as the First Appellate Court discussed presumption under Section 139 of Negotiable Instruments Act and rightly so, since there is material to rebut such presumption. Accordingly, no case is made out for any interference with the indings of the Courts below.
23. Revision Application, stands dismissed.
BHARAT P. DESHPANDE, J.
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