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2023 DIGILAW 1061 (BOM)

Govind Banhomal Chawla v. State of Maharashtra

2023-04-26

G.A.SANAP

body2023
JUDGMENT/ORDER 1. Heard. 2. Rule, Rule made returnable forthwith. Heard finally with the consent of learned Advocates for the parties. 3. In this revision application, challenge is to the judgment and order, dtd. 5/2/2020, passed by the learned Additional Sessions Judge, Akola, whereby the learned Sessions Judge dismissed the appeal filed by the applicant/accused against the judgment and order of his conviction and sentence for the offence punishable under Sec. 138 of the Negotiable Instrument Act, 1881 (hereinafter referred to as "the N. I. Act") passed by the learned Judicial Magistrate First Class, Akola. Learned Magistrate by his order dtd. 4/8/2018 had convicted the applicant/accused and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs.4, 60, 000.00 and in default of payment of fine to further suffer simple imprisonment for four months. 4. The facts relevant for deciding this application may be stated as follows: The applicant is the original accused. The non-applicant No.2 is the complainant. In this judgment, parties would be referred by their nomenclature in the complaint. It is the case of the complainant that her family and family of the accused are well acquainted with each other. They had cordial relations. The accused was in a need of money for his business purpose. The accused, therefore, demanded a sum of Rs.2, 50, 000.00 from her husband. Her husband was not having sufficient amount, therefore, the accused demanded the amount from the complainant. Considering the need and their relations with the accused she advanced hand loan of Rs.2, 50, 000.00 to the accused. The accused agreed to return the same. On demand of the money the accused, instead of making payment, issued a cheque bearing No. 524459 to her drawn on his account maintained with the Akola Janta Commercial Co-operative Bank Ltd., Branch Gorakshan Road, Akola on 17/9/2004. The complainant presented the cheque through her bank for encashment. The bank informed her that the cheque could not be encashed because the drawer had stopped the payment. On 23/9/2004, the complainant issued a notice through her Advocate to the accused and called upon the accused to pay the cheque amount within 15 days from the receipt of the notice. The accused received the notice but he failed to pay the cheque amount. The complainant, therefore, filed the complaint in the Court of Magistrate. On 23/9/2004, the complainant issued a notice through her Advocate to the accused and called upon the accused to pay the cheque amount within 15 days from the receipt of the notice. The accused received the notice but he failed to pay the cheque amount. The complainant, therefore, filed the complaint in the Court of Magistrate. Learned Magistrate took cognizance and issued process against the accused. 5. In the trial, the complainant examined herself as CW-1. She has also examined her husband as CW-2. The accused has examined himself in support of his defence. Learned Magistrate on consideration of the evidence and the material on record found the accused guilty and accordingly, sentenced him as above. The appeal filed against the conviction and sentence was dismissed by the learned Sessions Judge. The accused is, therefore, before this Court in revision. 6. I have heard Mr A. R. Deshpande, learned Advocate for the accused and Mr R.P. Joshi, learned Advocate for the complainant. Perused the record and proceedings. 7. Learned Advocate for the accused submitted that the complainant has miserably failed to prove basic ingredients of Sec. 138 of the N. I. Act. Learned Advocate pointed out that the complainant has admitted that she is housewife. It is therefore submitted that she had no source of income and therefore, there was no question of payment of Rs.2, 50, 000.00 to the accused by her. Learned Advocate submitted that, therefore, in this case the complainant has failed to disclose the source of the money or the availability of the cash with her on the given date. Learned Advocate further submitted that as per the provisions of the Income Tax Act, 1961 the payment of Rs.20, 000.00 can only be made in cash. Learned Advocate submitted that therefore the payment of the amount of Rs.2, 50, 000.00 if proved would be contrary to the provisions of the Income Tax Act, 1961. Learned Advocate submitted that the complainant had agreed to produce on record her income tax returns. However, she failed to produce the same on record. Learned Advocate therefore submitted that the complainant has failed to establish her financial capacity to advance a sum of Rs.2, 50, 000.00 to the accused. Learned Advocate further submitted that there was business transaction between him and one Seema Ragde. Seema Ragde was his partner for running his petrol pump. However, she failed to produce the same on record. Learned Advocate therefore submitted that the complainant has failed to establish her financial capacity to advance a sum of Rs.2, 50, 000.00 to the accused. Learned Advocate further submitted that there was business transaction between him and one Seema Ragde. Seema Ragde was his partner for running his petrol pump. Seema Ragde had provided finance for the business of petrol pump and at that time by way of security she had demanded blank cheques. He had provided four blank cheques to Seema Ragde. Learned Advocate submitted that the cheque in question was one of those four cheques issued to Seema Ragde. Learned Advocate submitted that there is ample evidence to prove that in the month of May 2004 itself by providing the details of the cheques, including the cheques number, he had requested the bank to stop the payment of those cheques. Learned Advocate submitted that the accused has adduced ample evidence to rebut the case of the complainant. Learned Advocate submitted that the evidence of complainant and her husband is inconsistent and therefore, cannot be believed. Learned Advocate in support of his submission placed reliance on the following three decisions: i} Basalingappa .v/s. Mudibasappa, (2019) 5 SCC 418 . ii} Dilip Virumal Ahuja .v/s. Rekha Vithal Patil, 2022 CJ (Bom) 208. iii} Sim Enterprises .v/s. Shaikh Abdul Rashid Choudhary, 2019(3) Mh.L.J.626. 8. Learned Advocate for the complainant submitted that the Courts below have recorded a concurrent finding of fact against the accused and therefore, in the revisional jurisdiction there is very little scope to interfere in the finding of fact. Learned Advocate submitted that the accused has not put forth any sound reason and ground to warrant the interference in the concurrent finding of fact. Learned Advocate submitted that there is no error apparent on the face of the record by the Courts below in deciding the matter. Learned Advocate submitted that the question of perversity of finding would not at all arise because the Courts below have recorded the concurrent finding on the basis of the available evidence. Learned Advocate submitted that the complainant on being asked by the accused has produced her income tax record with balance sheet for the relevant year. Learned Advocate submitted that the question of perversity of finding would not at all arise because the Courts below have recorded the concurrent finding on the basis of the available evidence. Learned Advocate submitted that the complainant on being asked by the accused has produced her income tax record with balance sheet for the relevant year. Learned Advocate submitted that the income tax return with the balance sheet would show that the payment of Rs.2, 50, 000.00 was made to the accused by the complainant. Learned Advocate submitted that the complainant is having her account in the bank. She is income tax payee. She has filed income tax return. Her income has been disclosed in the income tax return and therefore, the defence of the accused that the complainant failed to establish her financial position or availability of the money with her is not at all acceptable. Learned Advocate further submitted that the family of the complainant and the accused were having thick relations for years together. Learned Advocate pointed out that alongwith Seema Ragde the husband of the complainant was looking after the business of the petrol pump. Learned Advocate submitted that at the relevant time the accused was in financial crises and therefore, he took financial assistance from Seema Ragde. Learned Advocate further submitted that at that time the complainant on the demand of the accused advanced him hand loan of Rs.2, 50, 000.00. Learned Advocate submitted that the defence of the accused that the cheque in question was given to the Seema Ragde is not at all believable. Learned Advocate pointed out that on receipt of notice, wherein details of the cheque were specifically provided, it was the duty of the accused to object for the said notice. Learned Advocate submitted that the reply to the said notice indicate that he had not denied this fact. Learned Advocate further submitted that in the cross examination of the complainant this case was not put to her. Learned Advocate further submitted that if the case had been as stated by him then he would have first questioned Seema Ragde as to how she had handed over the cheque to the complainant and secondly, he would have specifically raised this contention in reply sent to the notice received from the complainant. Learned Advocate, therefore, submitted that this defence of the accused cannot be believed. Learned Advocate, therefore, submitted that this defence of the accused cannot be believed. Learned Advocate submitted that the Courts below have properly appreciated the material and evidence placed on record and came to a just and proper conclusion. Learned Advocate in short supported the judgment and order passed by the learned Sessions Judge. In order to substantiate his submissions, learned Advocate has placed reliance on following decisions: i} Kalamani Tex and Anr. .v/s. P. Balasubramanian, (2021) 5 SCC 283 . ii} Kishan Rao .v/s. Shankargouda, (2018) 8 SCC 165 . iii} Tedhi Singh .v/s. Narayan Dass Mahant, (2022) 6 SCC 735 . iv} State of Kerala .v/s. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 . 9. In the case of Tedhi Singh (cited supra) it is held that the complainant need not show his financial capacity, unless accused sets up a case questioning complainant's capacity in reply to statutory notice. It is further observed that the accused can set up such a case by producing independent materials or pointing to materials produced by complainant himself or cross examining witnesses of complainant. It is to be noted that in this case the Hon'ble Apex Court has considered the decision in the case of Baslingappa (cited supra) relied upon by the learned Advocate for the accused. In the case of Kalamani Tex (cited supra) it is held that once the signature on the cheque is admitted by the drawer the Court has to presume that the cheque was issued as a consideration for legally enforceable debt. In such situation, the defence of the accused that only blank cheque and signed blank cheque was given to the complainant would be immaterial. 10. Before proceeding to consider the merits of the matter it would be necessary to consider the decision in the case of Baslingappa (cited supra). It is held that if the accused disputes financial capacity of the complainant to pay the amount then the burden would be on the complainant to establish his financial capacity. It is to be noted that this decision was considered in the case of Tedhi Singh (cited supra) and wherein it is held that such a defence must be taken in reply to the notice. The same is the proposition in the remaining two judgments relied upon by the learned Advocate for the accused. 11. It is to be noted that this decision was considered in the case of Tedhi Singh (cited supra) and wherein it is held that such a defence must be taken in reply to the notice. The same is the proposition in the remaining two judgments relied upon by the learned Advocate for the accused. 11. Learned Advocate for the complainant relying upon decision in the case of Puttumana Illath (cited supra) submitted that appreciation of evidence is not permissible in the revisional jurisdiction unless it has been established that there has been gross miscarriage of justice. 12. The admitted facts needs to be stated at the outset. The accused has admitted his signature on the cheque. The accused has admitted the receipt of the demand notice. It is undisputed that in a reply to the said notice the accused did not set up the defence which has now been put forth by him. The accused has come before this Court with the defence that the cheque in question was given by him to Seema Ragde and therefore, there was no question of issuing of said cheque to the complainant. It is undisputed that the accused, the husband of the complainant and Seema Ragde were having business relations. The accused and the husband of the complainant were having cordial relations. It therefore goes without saying that they were not strangers to each other in the year 2004 when this transaction took place. The accused has not put up such a case to the complainant in her cross examination. For the first time this defence was put forth to the husband of the complainant in his cross examination, who is CW-2. 11. First I will deal with the contention of the accused that the cheque in question was given to Seema Ragde and not to the complainant and therefore, his defence has to be accepted. It is true that on 15/5/2004 he had issued a letter to his banker namely Akola Janta Commercial Co-operative Bank and informed that the payment of four cheques be stopped. In this letter, the number of the cheque in question was mentioned. This letter has been exhibited. The cheque in question was issued on 17/9/2004. The notice after dishonor of cheque was issued on 23/9/2004. The reply to this notice by the accused is dtd. 25/10/2004. In this letter, the number of the cheque in question was mentioned. This letter has been exhibited. The cheque in question was issued on 17/9/2004. The notice after dishonor of cheque was issued on 23/9/2004. The reply to this notice by the accused is dtd. 25/10/2004. In the notice, a categorical statement was made about dishonor of cheque with the remaining particulars such as amount of cheque, the date of the cheque and the nature of the transaction between the complainant and the accused. In this factual situation, it was expected of the accused to appropriately react to this notice. The contents of the notice would show that it was not ambiguous in any manner. He had not denied the fact stated in the notice. In his reply, he had only called upon the complainant to furnish the details with the document as to when and how the amount was advanced and as to when the impugned cheque was issued and delivered to her. The facts stated in this reply, first and foremost, can create a doubt about the genuineness of this letter dtd. 15/5/2004. The accused has produced the said letter on record. The copy of the letter would show that there is an acknowledgment of the letter on the given date from the bank. In my view, in the facts and circumstances, in order to lend assurance and credibility to his defence the accused was supposed to examine the witness from the bank. The accused did not act consistent with the conduct of the man of ordinary prudence placed in a similar situation. No reasons has been placed on record to accept such a serious lapse. In the absence of any reason, in my view, this fact would go against the accused. It is further pertinent to note that after filing of the complaint all the details and particulars of the cheque, the amount of cheque etc. had been provided. It is to be noted that if the cheque in question was really handed over to Seema Ragde, then he would have questioned Seema Ragde. If the fact had been as stated by him and the cheque was misused by Seema Ragde in this manner then it would have been a criminal offence. The accused was, therefore, expected to question, in writing, Seema Ragde about the misuse of the cheque. He has not done anything of this sort. If the fact had been as stated by him and the cheque was misused by Seema Ragde in this manner then it would have been a criminal offence. The accused was, therefore, expected to question, in writing, Seema Ragde about the misuse of the cheque. He has not done anything of this sort. It is further pertinent to note that the accused had second opportunity to deal with this aspect in the cross examination of the complainant. Perusal of the cross examination of the complainant would show that it is conspicuously silent about this defence. Even a suggestion was not put to her consistent with this defence of the accused. For the first time such suggestion was put to the husband of the complainant in his cross examination. Therefore, in my view, much weightage and importance cannot be given to this notice dtd. 15/5/2004 issued by the accused to his banker requesting them to stop the payment of cheque in question. In my view, on the basis of this defence it cannot be held that the cheque in question was not handed over to the complainant but it was handed over to Seema Ragde. 12. The next important defence of the accused is with regard to the financial capacity of the complainant, when the transaction took place between him and the complainant. On this count also, in my view, the defence of the accused cannot be accepted. The complainant in cross examination has stated that she is a housewife. Her husband is RTO agent. She has stated that her husband is the only earning member in their family. She has stated that she is income tax payee. She has admitted that her income tax return was not produced on record. She has stated that all the transactions are done by her husband. She has stated that the accused demanded money three years back. She was unable to state the exact date, but she has stated that it was Sunday. Learned Advocate for the accused on the basis of the above answers of the complainant submitted that this is sufficient material to accept his contention that she was not having money at her disposal to pay to the accused. It is to be noted that cross examiner if had remained content with these answers then the same would have benefited the accused. It is to be noted that cross examiner if had remained content with these answers then the same would have benefited the accused. However, the subsequent steps taken on behalf of the accused, in my view, has completely eclipsed all these answers given by the complainant in her cross examination as well as similar answers given by her husband in his cross examination. 13. The accused on 29/11/2007 made an application seeking direction to the complainant to file her income tax return on record. The complainant on the very same date filed say to this application and stated that she is ready to file the documents on record. The application was, therefore, allowed by the learned Judge on 29/11/2007. Pursuant to this order the complainant produced on record documents from the income tax department. Exh. 67 is the acknowledgment receipt from the income tax department given to the complainant on filing of the income tax return for the assessment year 2004-05. Alongwith this receipt, the complainant has produced the balance sheet. Perusal of this balance sheet would show that there are two debit entries in the name of the accused. First debit entry is in respect of payment of Rs.1, 00, 000.00 to Satguru Highway Service, Borgaon Manju and the second entry is for Rs.2, 50, 000.00 in the name of Satguru Highway Service, Borgaon Manju. The entries would show that complainant in her statement of account/balance sheet mentioned the payment made to the accused. Learned Advocate submitted that this document was not called upon by the accused. In my view, this document cannot be segregated from the acknowledgment received from the income tax department. The acknowledgment appears to be a part of the balance sheet. Therefore, in my view, the second plank of defence of the accused also looses its significance. The production of the documents relating to her income tax return would show that the complainant displayed fairness on her part. The complainant could have avoided the production of documents if there was no substance in her contention. She was not called upon in a cross examination to produce the said documents. When she was called upon to produce the same, the complainant without hesitating for a moment shown willingness to produce the documents. In my view, this would reflect upon the conduct and bona fides of the complainant. She was not called upon in a cross examination to produce the said documents. When she was called upon to produce the same, the complainant without hesitating for a moment shown willingness to produce the documents. In my view, this would reflect upon the conduct and bona fides of the complainant. In my view, therefore, this document would be an answer to this defence of the accused. 14. The appreciation of evidence at the outset was warranted and necessary, because the learned Advocate for the accused made a submission that the judgment and order passed by the learned Sessions Judge suffers from patent illegality and voice of perversity. The defence of the accused has been made a bone of contention to find a fault with the well reasoned judgment and order of the learned Judge. Therefore, before proceeding to the other aspect of the matter I have dealt with the defence at first. 15. The next important point is with regard to the proof of the basic ingredients of Sec. 138 of the N. I. Act by the complainant. The complainant in her evidence has narrated in great detail the nature of the transaction. The evidence of the complainant with regard to the transaction with the accused cannot be discarded. The complainant and the accused were well acquainted with each other when this transaction took place. The husband of the complainant is the friend of the accused. The accused has also admitted this fact. They were not only friend but also had a business dealings. It has come on record in the evidence of the husband of the complainant as well as in the evidence of the accused that he was instrumental in transaction between the accused and Seema Ragde. It has come on record that dispute arose between the accused, Seema Ragde and the husband of the complainant because of failure on the part of the Seema Ragde to furnish the accounts of the business of the petrol pump. The accused has admitted his signature on the cheque. The cheque is at Exh. 36. The cheque return memo with reason for dishonor is at Exh. 22. The demand notice is at Exh. 37. The reply given by the accused is at Exh. 58. I have already observed that this reply is as vague as vagueness could be. The notice issued by the accused to Seema Ragde is at Exh. 36. The cheque return memo with reason for dishonor is at Exh. 22. The demand notice is at Exh. 37. The reply given by the accused is at Exh. 58. I have already observed that this reply is as vague as vagueness could be. The notice issued by the accused to Seema Ragde is at Exh. 47. The complainant and her husband have deposed about the nature of the transaction. Therefore, the evidence of the complainant and her husband supported by the documentary evidence is sufficient to establish the foundational facts to attract the presumption provided under Ss. 118 and 139 of the N. I. Act. 16. In the backdrop of the above evidence, it is necessary to see whether a case in question is a fit case to invoke the presumption under Sec. 118 and 139 of the N. I. Act. As per Sec. 118 of the N. I. Act, until the contrary is proved, the Court has to presume that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration. The presumption is also there with regard to its date and time of acceptance. Sec. 139 provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque for the discharge, in whole or in part, of any debt or other liability. The complainant has adduced sufficient evidence to prove the basic ingredients of Sec. 138 of the N. I. Act. She has proved the issuance of cheque by the accused. She has proved the actual nature of the transaction between her and the accused. In this case the foundational facts have been established and on the basis of the same, a case has been made out to invoke the presumption under Sec. 118 and 139 of the N. I. Act against the accused. 17. It is therefore apparent that the evidence adduced by the accused falls short to rebut the presumption attracted against him. The accused is, therefore, unable to substantiate his contentions. 17. It is therefore apparent that the evidence adduced by the accused falls short to rebut the presumption attracted against him. The accused is, therefore, unable to substantiate his contentions. Perusal of the judgment and order passed by the learned Sessions Judge would show that the learned Judge in the exercise of the appellate jurisdiction has made threadbare analysis of the evidence and on doing so confirmed the judgment and order passed by the learned Magistrate. Minute perusal of the judgment and order of the learned Sessions Judge would show that the entire evidence on record has been taken into consideration and properly appreciated. The finding of fact, to accept the case of the complainant and to negative the defence of the accused, is based on proper appreciation of evidence. The reasons have been recorded. As such, I do not find any illegality or perversity in the judgment and order passed by the learned judge. It, therefore, goes without saying that in this situation the exercise of appreciation of evidence by this Court is not warranted. Learned Advocate for the complainant was, therefore, right in relying upon the decision in the case of Puttumana Illath (cited supra). This decision is squarely applicable to the facts of this case in view of my above said observations. Therefore, I am of the view that no interference is warranted in the judgment and order passed by the learned Sessions Judge. 18. Learned Advocate for the accused submitted that the learned sessions Judge has confirmed the substantive sentence of one year awarded by the learned Magistrate. Learned Advocate submitted that the against the cheque amount of Rs.2, 50, 000.00 the fine amount awarded is Rs.4, 60, 000.00 and out of this fine amount Rs.4, 50, 000.00 was directed to be given to the complainant as a compensation. It is pointed out that the accused had deposited Rs.50, 000.00 in the appeal proceeding. Learned Advocate submitted that the accused has also undergone some part of the substantive sentence. Learned Advocate submitted that the transaction took place in the year 2004. Learned Advocate submitted that from the date of the judgment of the Magistrate dtd. 4/8/2018 the damocles sword in the nature of conviction and sentence remained hanging over the neck of the accused for six years. Learned Advocate further submitted that the accused has undergone the ordeal of this trial since 2004. Learned Advocate submitted that from the date of the judgment of the Magistrate dtd. 4/8/2018 the damocles sword in the nature of conviction and sentence remained hanging over the neck of the accused for six years. Learned Advocate further submitted that the accused has undergone the ordeal of this trial since 2004. Learned Advocate submitted that this ordeal undergone by him would by itself a sufficient punishment. Learned Advocate submitted that sufficient compensation has been awarded and therefore, the order with regard to substantive sentence may be modified. 19. Learned Advocate for the complainant submitted that if the Court is inclined to accept the submissions and substantive sentence is modified then the amount of compensation may be proportionally increased. Learned Advocate submitted that in view of the acceptance of the case of the complainant, if there is no increase in the compensation subject to modification of the substantive sentence, the complainant would suffer. 20. I have given thoughtful consideration to the submissions. It is to be noted that the transaction is sort of money transaction between the parties. The said transaction has been brought within the dragnet of Sec. 138 of the N. I. Act. Otherwise it would have been a pure and simple civil dispute. The compensation awarded is almost double of cheque amount. The parties as can be seen from the above discussion had cordial and thick relations. The transaction is out come of cordial and thick relations. In my view, therefore, sending the accused to jail would not serve any purpose of the complainant. The complainant would be interested to get her money back, at the earliest. In my view, therefore, considering the quantum of compensation it would not be proper to award the further compensation. In the facts and circumstances, in my view, the substantive sentence is required to be modified. 21. Accordingly, the substantive sentence of one year is substituted by sentence already undergone by him. 22. The accused shall pay the balance compensation amount within two months from today. In default of payment of compensation within two months from today the accused shall undergo simple imprisonment for six months. 23. Liberty is granted to the complainant to withdraw the amount already deposited by the accused and also the remaining amount as and when deposited by the accused. 24. With the above modification, the revision application stands dismissed. Rule stands discharged. No cost.