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2023 DIGILAW 1368 (BOM)

Anil Acharmal Thakur v. Manish Pundlikrao Sathe

2023-06-26

G.A.SANAP

body2023
JUDGMENT/ORDER 1. Heard. 2. In this revision application, challenge is to the judgment and order dtd. 8/6/2017 passed by the learned Additional Sessions Judge-3, Amravati, whereby the learned Additional Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by the learned Judicial Magistrate, First Class, Court No.3, Amravati for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I.Act"). Learned Judicial Magistrate First Class, Court No.3, Amravati on conviction had sentenced the accused to suffer rigorous imprisonment for one month and to pay compensation of Rs.30, 000.00 to the complainant. 3. The non-applicant is the original complainant. It is the case of the complainant that he had cordial relations with the accused. The accused demanded Rs.28, 000.00 from him. The complainant paid the said amount to the accused. The accused issued a cheque bearing No.024257 of Rs.28, 000.00 drawn on his account maintained with U.T.I. Bank Limited. On presentation, the cheque was dishonoured for the reason "account closed". The complainant issued notice dtd. 15/12/2008 to the accused. Despite receipt of the notice, the accused neither paid the amount nor replied the said notice. 4. In the complaint filed by the complainant, learned Magistrate took the cognizance and issued the process. The complainant adduced the oral and documentary evidence. Learned Magistrate on consideration of the evidence convicted and sentenced the accused as above. The appeal filed against the said conviction was dismissed by the learned Additional Sessions Judge, Amravati. The accused is therefore, before this Court in revision. 5. I have heard Shri G.I. Dipwani, learned Advocate for the accused. The complainant despite service of notice failed to appear before this Court. Perused the record and proceedings. 6. Learned Advocate for the accused submitted that the complainant has failed to prove the basic ingredients of Sec. 138 of the N.I.Act. Learned Advocate submitted that there is ample material on record to rebut the presumption invoked against the accused. Learned Advocate submitted that the Courts below have not properly appreciated the evidence and came to a wrong conclusion. Learned Advocate further submitted that the learned Magistrate has awarded compensation of Rs.30, 000.00 whereas the cheque was for Rs.28, 000.00. Learned Advocate pointed out that the accused has deposited the compensation of Rs.30, 000.00. Learned Advocate submitted that the Courts below have not properly appreciated the evidence and came to a wrong conclusion. Learned Advocate further submitted that the learned Magistrate has awarded compensation of Rs.30, 000.00 whereas the cheque was for Rs.28, 000.00. Learned Advocate pointed out that the accused has deposited the compensation of Rs.30, 000.00. Learned Advocate submitted that considering the nature of transaction the substantive sentence of one month was disproportionate to the gravity of the proved offence. Learned Advocate submitted that conviction and sentence is required to be set aside. 7. The complainant has deposed that the accused was in need of Rs.28, 000.00 and therefore, considering his cordial relations with the accused, he paid the same to the accused on 15/4/2008. The accused issued the cheque on 15/9/2008 for Rs.28, 000.00 to the complainant. It is at Exh.54. The complainant has stated that he was having money lending license. The license is at Exh.53. The complainant has stated that at the time of payment of money, the accused had executed a promissory note. Promissory note is at Exh. 52. It is the defence of the accused that he had borrowed Rs.5, 000.00 from the complainant in the year 2007. The complainant has denied the suggestion put to him in his cross-examination on this point. The promissory note is at Exh.52. It corroborates the oral evidence of the complainant. The notice issued on dishonour of cheque is dtd. 15/10/2008. It is at Exh.57. The notice was sent by R.P.A.D. at the address of the accused. The RPAD envelop was returned back. The notice was also sent by UCP. UCP Postal Receipt is at Exh.59. R.P.A.D. envelop is at Exh.60. On the basis of the evidence the complainant has proved the service of notice. The accused neither replied the notice nor paid the amount. The cheque was dishonoured on the ground of "account closed". The accused was informed about dishonour of cheque. The accused had an opportunity to make the payment and avoid the prosecution. 8. 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. The accused was informed about dishonour of cheque. The accused had an opportunity to make the payment and avoid the prosecution. 8. 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. He has proved the issuance of cheque by the accused. He has proved the actual nature of the transaction between him and the accused. In my view, therefore, the presumption under Sec. 118 and 139 of the N. I. Act has been invoked against the accused on the basis of the evidence. 9. On the basis of oral and documentary evidence the complainant has proved the foundational facts to draw the presumption provided under Ss. 118 and 139 of the N.I.Act against the accused. 10. The accused was required to lead the evidence and rebut the presumption invoked against him. The accused did not adduce the evidence. It is also seen that there is no material on record to rebut the presumption invoked against the accused. It is seen that the Courts below have properly appreciated the evidence and recorded the findings against the accused. On going through the record and evidence, I am of the view that findings are based on proper appreciation of evidence. No interference is therefore, warranted in the judgment and order passed by the learned Additional Sessions Judge. 11. The next important question is whether the substantive sentence of one month rigorous imprisonment is proportionate to the proved offence. The amount of cheque was Rs.28, 000.00. No interference is therefore, warranted in the judgment and order passed by the learned Additional Sessions Judge. 11. The next important question is whether the substantive sentence of one month rigorous imprisonment is proportionate to the proved offence. The amount of cheque was Rs.28, 000.00. The accused has been directed to pay a compensation of Rs.30, 000.00 to the complainant. In the facts and circumstances of the case, in my view, the substantive sentence of one month rigorous imprisonment would be disproportionate to the gravity of the proved offence. The parties are from the same village. The accused has deposited the amount of Rs.30, 000.00 in the Court. The complainant would get the said amount. It is to be noted that in a cheque bounce cases, the transaction is generally money transaction. The Court is vested with jurisdiction in the matter of awarding sentence. The law does not mandate that the substantive sentence shall form the part of the order in cheque bounce case. The transaction between parties took place in the year 2008. The accused has faced the ordeal of this prosecution for about 15 years. He was first convicted by the learned Magistrate on 18/3/2013. The appeal was dismissed on 8/6/2017. In my view, considering the facts and circumstances, the order with regard to the substantive sentence is required to be set aside. 12. The Criminal Revision Application is dismissed. The order with regard to the substantive sentence of one month rigorous imprisonment is set aside. 13. The revision application stands disposed of.