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Gujarat High Court · body

2017 DIGILAW 923 (GUJ)

Kiritbhai Kantilal Umariya v. State of Gujarat

2017-05-01

Z.K.SAIYED

body2017
JUDGMENT : Z.K. Saiyed, J. 1. By way of present revision application filed by the applicant-original accused under Section 397 read with Section 401 of the Cr.P.C. the applicant has challenged the order dated 10.06.2014 passed in Criminal Case No. 1216 of 2012 by the learned Judicial Magistrate First Class, Pardi, whereby the applicant has been held guilty for the offence punishable under Section 138 of the Negotiable Instrument Act, 1881 and sentenced to undergo one year simple imprisonment. The applicant was directed to pay an amount of Rs. 17,60,000/- i.e. double the amount of cheque with interest at the rate of Rs. 9% from the date of the complainant. The said order was assailed by the applicant before the learned appellate Court. The learned (Ad-hoc) Additional Sessions Judge, Valsad vide order dated 02.09.2015 passed in Criminal Appeal No. 17 of 2014, confirmed the order passed by learned Judicial Magistrate First Class, Pardi. 2. The facts of the Prosecution in nutshell is such that the complainant is doing a business in the name and style of Shreeram Fabrication at Pardi and the applicant-accused is a proprietor of Umiya Steel Fabricator and doing the business at Borivali (West), Mumbai. The applicant is nephew of the complainant. The applicant gave work order in the project of Boisar, Maharashtra "Section Rolling Mill (Viraj) to the complainant. The said work order was completed by the complainant within stipulated period of time i.e. April 2012 as per the terms and conditions, costing Rs. 12,81,337/-. For the said amount, the accused gave two cheques of ICICI Borivali Branch bearing No. 759759 of Rs. 5 lacs and bearing No. 759794 of Rs. 3,80,000/-. On depositing the said cheques in the account of the complainant, the said the cheques returned without clearing on 30.07.2012 with an endorsement showing "Payment stopped by drawer". The said fact was informed by the complainant to the applicant, however, the applicant did not give any reply. Therefore, the complainant issued notice on 23.08.2012 inspite of which, the applicant-accused did not make the payment, the present complaint has been filed. 3. Thereafter, summons was issued. Plead was recorded at Exh. 16 and the complainant has produced documentary evidences and examined the Kanaiyalal Maganlal Chauhan at Exh. 41 4. Therefore, the complainant issued notice on 23.08.2012 inspite of which, the applicant-accused did not make the payment, the present complaint has been filed. 3. Thereafter, summons was issued. Plead was recorded at Exh. 16 and the complainant has produced documentary evidences and examined the Kanaiyalal Maganlal Chauhan at Exh. 41 4. After filing closing purshish, statement of the applicant-accused was recorded further statement of the appellant-accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded, wherein the appellant has denied the case of the prosecution and has pleaded his innocence. The appellant have submitted that a false case is filed against him. 5. Being aggrieved by and dissatisfied with the aforesaid judgment and orders, applicant-original accused has preferred this revision application. 6. Heard Mr. Utpal M. Panchal, learned advocate for the applicant-accused, Mr. Adil Mirza, learned advocate for respondent No. 1 and Mr. N.J. Shah, learned APP for the respondent-State. 7. Mr. Utpal M. Panchal, learned advocate contended that the judgments and order passed by Courts below are illegal, invalid and improper. He has also contended that the Courts below have not considered the case of the defence and material evidence produced on record and has passed absolutely wrong order. He contended that the complainant is shown as proprietor of Shreeram Fabricator. Mr. Panchal, relied upon the decision in the case of Milind Shripad Chandukar Vs. Kalim M. Khan, reported in (2011) 2 SCC 1670, wherein it is observed that the complainant did not produce any evidence to show that he was the proprietor of the firm and complainant not being the payee, the complainant at his instance was not maintainable. In present case, it is admitted by the complainant in his cross-examination that he is a proprietor of Shreeram Fabricator, however, he did not produce any document in support of the said factum before the Court and he has not signed the complaint as proprietor. Hence, the complainant has not produced any cogent evidence showing the ownership of the firm and therefore the impugned orders may be quashed and the present applicant-accused may be released. He contended that impugned complaint does not have the rubber stamp. Mr. Panchal, learned advocate relied upon another decision in the case of Sathyan Vs. Hence, the complainant has not produced any cogent evidence showing the ownership of the firm and therefore the impugned orders may be quashed and the present applicant-accused may be released. He contended that impugned complaint does not have the rubber stamp. Mr. Panchal, learned advocate relied upon another decision in the case of Sathyan Vs. Yousu, reported in 2007 CrLJ 2590 , and contended that once the criminal complaint is lodged under Section 138 of the Act, a civil suit is seldom filed to recover the amount of the cheque and therefore, unless the amount is claimable in a civil suit, a direction under Section 357(1) or Section 357(3) of the Cr.P.C. for payment of compensation cannot be issued. Hence, in the cases of Negotiable Instrument Act, if the party has remedy to get the compensation by way of filing Civil Suit, the learned trial Court cannot award any compensation to the complainant. He further contended that the complainant has filed suit being Summary Suit No. 14 of 2015, which is pending before the learned Principal Senior Civil Judge, Vapi. Lastly, he contended that the both the Courts below have committed grave error in convicting the applicant-accused and therefore, the present applicant-accused may be released by giving the benefit of doubt. 8. As against this, Mr. Adil Mirza, learned advocate for respondent No. 1 has contended that would submit that conviction recorded by the trial Magistrate as affirmed by the Appellate Court is well merited and does not call for any interference and the sentence awarded is also just, fair and reasonable. He contended that in the cross-examination it is disclosed by the complainant that he is a proprietor of the firm and therefore, reliance placed by Mr. Panchal, learned advocate for the applicant to the case of Shripad Chandukar (Supra), is baseless and misconceived as facts of both the cases are far different. Mr. Panchal has argued that if a person has remedy to recover the amount of compensation by way of filing suit, then he cannot make any claim by filing criminal complaint under Section 138 of the Act. In present case, the learned trial Court has awarded the compensation and as per the provisions of law, there is no bar and the proceedings under Section 138 of the Act cannot be treated as civil suits for recovery of the cheque amount with interest. In present case, the learned trial Court has awarded the compensation and as per the provisions of law, there is no bar and the proceedings under Section 138 of the Act cannot be treated as civil suits for recovery of the cheque amount with interest. He contended that the complainant is not able to carry out his business and he is bed ridden. He has contended that looking to the overall facts and circumstances of the case and evidence produced on record, orders passed by the Courts below are absolutely just and legal and are not required to be interfered with. He, therefore, prayed to dismiss the revision application. 9. I have gone through the impugned judgment and order passed by both the Courts below and oral as well as documentary evidence produced on record of the case. I have read the oral evidence of prosecution witness and also perused the charge framed against the applicant-accused. 10. First of all, it is relevant to state that decision of the Apex Court relied upon by Mr. Panchal, learned advocate is not applicable to the present case as fact of said case is different than that of present case. In the present case, it is admitted by the complainant in the cross-examination that he is carrying a business in the name and style of Shreeram Fabricator and he is a proprietor and he has issued cheque after making rubber stamp of firm. Mr. Panchal, learned advocate has argued that when civil remedy is available to claim the compensation, the learned trial Court ought not to have awarded compensation to the complainant. The law with regard to grant of compensation under Section 357(3) of the Cr.P.C. in cases arising from Section 138 of the N.I. Act is well settled, however, it is open for the applicant to challenge the suit pending consideration before the Civil Court, Vapi. It is the case of the prosecution that the work order was given to the complaint by the applicant-accused. The said work order was completed by the complainant within stipulated period of time as per the terms and conditions. For the payment of the said work order, the applicant-accused gave two cheques, however, the said cheques were returned with an endorsement of "Stop Payment". The said work order was completed by the complainant within stipulated period of time as per the terms and conditions. For the payment of the said work order, the applicant-accused gave two cheques, however, the said cheques were returned with an endorsement of "Stop Payment". Therefore, the complainant gave legal notice to the applicant-accused, however, the applicant did not pay any heed to the said notice and did not make the payment. Looking to the procedure followed by the complainant, it appears that the complainant has sent the notice in accordance with law. The present applicant has misused the understanding with the complainant and therefore, the complaint was filed. In the present case, this faith has been breached and warrants imposition of imprisonment and payment of compensation with interest. Therefore, both the Courts below have rightly convicted the applicant-accused and rightly awarded the compensation double the cheque amount with 9% per annum. When facts have been fairly tried by two Courts and the same conclusion has been reached by both, this Court ordinarily will not interfere with concurrent findings of fact except in exceptional cases, where the findings are such that it shocks the conscience of the Court or by disregard to the forms of legal process or some violation of some principles of natural justice or otherwise substantial and grave injustice has been done. It must necessarily be left to the discretion of this Court having regard to the facts of a particular case. 11. I am, therefore of the opinion that both the Courts below have not committed any error in convicting the applicant-accused for the alleged offence. Therefore, no interference is required. Order dated 10.06.2014 passed in Criminal Case No. 1216 of 2012 by the learned Judicial Magistrate First Class, Pardi and order dated 02.09.2015 passed in Criminal Appeal No. 17 of 2014 by the learned (Ad-hoc) Additional Sessions Judge, Valsad are hereby confirmed. The present Criminal Revision Application deserves to be dismissed and is hereby dismissed. Record and Proceedings, if any, be sent back to the trial Court concerned, forthwith. The bail bond of the applicant-accused shall stand cancelled and he is directed to surrender before the jail authority within a period of six weeks from today. Application Dismissed.