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2023 DIGILAW 1336 (BOM)

Uttamchand v. State of Maharashtra

2023-06-21

G.A.SANAP

body2023
JUDGMENT/ORDER 1. In this revision application, challenge is to the judgment and order dtd. 22/9/2015 passed by learned Additional Sessions Judge, Yavatmal in Criminal Appeal No. 36/2005, whereby learned Additional Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by learned Judicial Magistrate, First Class, Court no.4, Yavatmal by the judgment and order dtd. 16/7/2005, for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act" for short). Learned Magistrate, on conviction, had sentenced the accused to suffer simple imprisonment for six months and to pay compensation of Rs.1, 50, 000.00 (Rupees One lakh Fifty thousand only). 2. Non-applicant no.2 is the original complainant. It is the case of the complainant that the accused had cordial relations with him. The accused was in need of money. On demand of the accused, the complainant paid him Rs.1, 50, 000.00 (Rupees One lakh Fifty thousand only). The accused on the very same day issued him a cheque bearing No. 252747 dtd. 11/5/2004, drawn on his account maintained with State Bank of India, Wani. The complainant presented the said cheque for encashment. The bank of the complainant informed him that the cheque was dishonoured on the ground of "insufficient funds" in the account of the accused to honour the cheque. The complainant thereafter issued a notice to the accused and called upon him to pay the cheque amount. The accused, as per the case of the complainant, neither paid the amount nor replied the notice. Learned Magistrate, on the basis of the material placed on record, took cognizance of the offence and issued process against the accused. 3. The complainant examined himself as sole witness. The accused examined one witness in support of his defence. Learned Magistrate, on consideration of the evidence, found the accused guilty and sentenced him as above. The appeal filed by the accused against the judgment and order of learned Magistrate was dismissed by learned Additional Sessions Judge. The accused has, therefore, approached this Court. 4. I have heard Mr. A. S. Dhore with Mr. Karan Bhende, learned advocates for the applicant/accused, Mrs. M. H. Deshmukh, learned Additional Public Prosecutor for the State and Mr. Ritesh Badhe and Ms. Shrushti Shahakar, learned advocates for non-applicant no.2/complainant. Perused the record and proceedings. 5. The accused has, therefore, approached this Court. 4. I have heard Mr. A. S. Dhore with Mr. Karan Bhende, learned advocates for the applicant/accused, Mrs. M. H. Deshmukh, learned Additional Public Prosecutor for the State and Mr. Ritesh Badhe and Ms. Shrushti Shahakar, learned advocates for non-applicant no.2/complainant. Perused the record and proceedings. 5. Learned advocate for the accused submitted that the accused has adduced sufficient evidence to substantiate his defence that the transaction in question was a money lending transaction. Learned advocate submitted that there is ample evidence to rebut the presumption provided under the N.I. Act. Learned advocate submitted that the trial Court as well the Appellate Court has not properly appreciated the defence of the accused. Learned advocate submitted that the application made by the accused for sending the disputed signature on the cheque for examination to the Handwriting Expert, was not decided by learned Magistrate. Learned advocate submitted that it has resulted in miscarriage of justice. Learned advocate further submitted that the substantive sentence awarded by learned Magistrate was disproportionate to the gravity and seriousness of the proved offence. Learned advocate, therefore, prayed for setting aside that part of the order. 6. Learned advocate for the complainant submitted that the Courts below have properly appreciated the evidence and by doing so recorded concurrent finding of fact in favour of the complainant. Learned advocate submitted that the complainant by leading oral and documentary evidence established the foundational facts to invoke presumption provided under the N.I. Act, against the accused. Learned advocate submitted that the evidence adduced by the accused is not sufficient to rebut the said presumption. 7. It is seen on perusal of the cross-examination of the complainant that consistent with the defence that the transaction in question was a money lending transaction, number of question were asked to him. The complainant has answered that he has filed hundred cases under Sec. 138 of the N.I. Act against various persons. On the basis of this admission, it is submitted that the accused has in fact admitted the defence of the accused with regard to money lending transaction. It is to be noted that the complainant in his evidence has narrated the nature of transaction. He has admitted that the accused is his maternal uncle. This admission would show that they are close relatives. 8. The accused has not disputed his signature on the cheque. It is to be noted that the complainant in his evidence has narrated the nature of transaction. He has admitted that the accused is his maternal uncle. This admission would show that they are close relatives. 8. The accused has not disputed his signature on the cheque. Therefore, in my view, failure on the part of the trial Court to decide his application for referring the signature on the cheque to the Handwriting Expert, would be of no significance. The complainant, on the basis of his oral as well as documentary evidence, prima facie, established that the accused had drawn the cheque in his favour. It was signed by him. The demand notice was issued to the accused. The said notice was not replied by the accused. The complainant has independently proved the service of notice. The accused, on receipt of the notice on being made aware of the case of the complainant, was expected to reply the notice and place on record his defence. The accused missed the said opportunity. The accused did not step into the witness box. Witness No.2 has been examined to substantiate his defence that the transaction was a money lending transaction and the complainant had advanced him Rs.10, 000.00 (Rs. Ten thousand) only. Learned Magistrate as well as learned Additional Sessions Judge discarded the evidence of the witness examined by the accused. 9. In this case, on the basis of oral and documentary evidence, the complainant has proved issuance of cheque by the accused. He has also proved that the cheque, on presentation for encashment, was dishonoured on the ground of insufficient funds in the account of the accused. The accused has not disputed this fact. The complainant has, therefore, on the basis of oral and documentary evidence, established the foundational facts to invoke the presumption against the accused as provided under Ss. 118 and 139 of the N.I. Act. The evidence adduced by the accused is not sufficient to rebut this presumption. It is further seen that the other material available on record is not sufficient to rebut the presumption invoked against the accused. It is to be noted that on proof of certain facts the presumption provided under Sec. 139 of the N. I. Act in favour of holder gets attracted. It is further seen that the other material available on record is not sufficient to rebut the presumption invoked against the accused. It is to be noted that on proof of certain facts the presumption provided under Sec. 139 of the N. I. Act in favour of holder gets attracted. The law provides that unless and until it is contrary proved it shall be presumed that the holder of the cheque received the cheque for the discharge in whole or in part of any debt or other liability. Similarly, Sec. 118 provides that until the contrary is proved it must be presumed that every negotiable instrument is made or drawn for consideration. 10. I have minutely perused the judgment and order passed by learned Magistrate as well as the judgment and order passed by learned Additional Sessions Judge in appeal. It is seen that the Courts below have taken the entire evidence into consideration. The concurrent findings of fact is based on proper consideration of said evidence. It is to be noted that in the absence of any error or mistake apparent on the face of the record or total perverse approach by the Courts below, exercise of re-appreciation of the evidence cannot be undertaken in revisional jurisdiction. In my view, therefore, the concurrent findings of fact cannot be interfered with. 11. The next important question is about proportionality of the substantive sentence awarded by the Magistrate. As per the provisions of Sec. 138 of the N.I.Act, the Court has discretion either to award substantive sentence or award fine or compensation. It is to be noted that in prosecution under Sec. 138 of the N.I. Act, the dispute involved is money dispute. It is the net result of money transaction between the parties. Therefore, while awarding substantive sentence, the Court has to weigh all the probabilities and award substantive sentence proportionate to the gravity of the proved offence. In this case, learned advocate for the accused submitted that the accused is 85 years old. He has undergone heart surgery. He is bed ridden. He is the maternal uncle of the complainant. He has deposited the compensation of Rs.1, 50, 000.00 in the Court. Learned advocate for the accused, therefore, submitted that the substantive sentence is not at all warranted in this case. He has undergone heart surgery. He is bed ridden. He is the maternal uncle of the complainant. He has deposited the compensation of Rs.1, 50, 000.00 in the Court. Learned advocate for the accused, therefore, submitted that the substantive sentence is not at all warranted in this case. Learned advocate for the accused, in all fairness, submitted that in order to take care of the grievance on all counts made by the complainant, this Court by exercising its discretion may grant some more amount by way of compensation. Learned advocate for the complainant submitted that the transaction is of the year 2004 and therefore, in case this Court is inclined to accept the submission to modify the order with regard to the substantive sentence, the accused be directed to pay interest on the amount of cheque from 2004. 12. It is to be noted that the accused and the complainant are close relatives. The complainant would not, from the bottom of his heart, want his maternal uncle to got to jail and that too at the age of 82 years, in bed ridden condition. In the facts and circumstances, in my view, six months' simple imprisonment awarded by the Magistrate and confirmed in appeal by the Additional Sessions Judge, is apparently disproportionate to the gravity of the proved offence. After bestowing thoughtful consideration to the submissions, in my view, interest of justice would be met if a sum of Rs.35, 000.00 is awarded as additional compensation to the complainant. In my view, it would take care of the grievance made by the complainant in all respect. 13. Accordingly, the Criminal Revision Application is dismissed. (i) The order with regard to substantive sentence passed by learned Judicial Magistrate, First Class, Court No.4, Yavatmal, dtd. 16/7/2005 in Summary Criminal Case No. 2728/2004 and confirmed by learned Additional Sessions Judge, Yavatmal on 22/9/2015 in Criminal Appeal No. 36/2005, is set aside. (ii) Applicant/accused - Uttamchand S/o Ratanchand Zambad is directed to pay Rs.35, 000.00 (Rupees Thirty Five thousand only) towards compensation, over and above Rs.1, 50, 000.00 already deposited, within one month from today. The amount be deposited in this Court. (iii) In case of failure of the applicant/accused to deposit Rs.35, 000.00 (Rs. Thirty Five thousand only) within one month from today, he shall undergo simple imprisonment for one month. The amount be deposited in this Court. (iii) In case of failure of the applicant/accused to deposit Rs.35, 000.00 (Rs. Thirty Five thousand only) within one month from today, he shall undergo simple imprisonment for one month. (iv) The amount of Rs.70, 000.00 (Rupees Seventy thousand only) already deposited in this Court pursuant to the earlier order and the amount of Rs.35, 000.00 (Rupees Thirty Five thousand only), deposited pursuant to this order, be paid over to non-applicant no.2/ complainant - Sunil Fulchand Bharut. 14. The revision application stands disposed of in the aforesaid terms.