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2023 DIGILAW 1390 (BOM)

Prabhakar v. Vishnu

2023-06-27

G.A.SANAP

body2023
JUDGMENT/ORDER 1. In this criminal revision application, challenge is to the judgment and order dtd. 12/10/2011 passed by the learned Adhoc Additional Sessions Judge, Gondia, whereby the learned Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by the learned Judicial Magistrate First Class, Gondia for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (for short " the N.I.Act"). The learned Judicial Magistrate First Class, Gondia by order dtd. 31/8/2009 on conviction had sentenced the applicant/accused to suffer rigorous imprisonment for three months and to pay fine of Rs.1, 000.00 and also directed him to pay the compensation of Rs.1, 60, 000.00 to the complainant. 2. The facts are as follows:- The parties in this judgment would be referred by their nomenclature in the complaint. The applicant is the accused and non-applicant No.1 is the complainant. It is the case of the complainant that he and accused both were doing business of grains. The complainant is doing his business under the name and style of 'Anand Bhandar'. The accused at the relevant time was doing the business under the name and style as 'Prabhakar Trading'. On the request of accused the complainant supplied the rice to accused worth Rs.4, 38, 385..00 As agreed between them, accused was to make payment on receipt of goods. The accused did not pay the money despite receipt of the rice. The accused after great persuasion made a part payment. The accused issued the cheque bearing No.895005 for Rs.1, 60, 000.00 drawn on his account maintained with Nagpur Nagrik Sahakari Bank Ltd. Branch at Dharampeth, Nagpur. The complainant on presentation of the cheque was informed by his banker that the cheque was dishonoured on the ground of insufficient funds in the account of accused. The complainant issued a notice dtd. 4/2/2002 to accused and called upon him to pay the amount of cheque. The notice was duly served upon accused. The accused neither replied the notice nor paid the amount. In the complaint filed by the complainant learned Magistrate took the cognizance and issued the process. 3. The complainant examined himself and one witness. He relied on number of documents. The accused has examined himself and one independent witness. Learned Magistrate on consideration of the evidence found the accused guilty and sentenced him as above. In the complaint filed by the complainant learned Magistrate took the cognizance and issued the process. 3. The complainant examined himself and one witness. He relied on number of documents. The accused has examined himself and one independent witness. Learned Magistrate on consideration of the evidence found the accused guilty and sentenced him as above. The appeal filed against his conviction and sentence was dismissed by the learned Adhoc Additional Sessions Judge. The accused is therefore, before this Court. 4. I have heard Shri N.S. Khandewale, learned Advocate for the applicant, Shri S.N. Tapadia, learned Advocate for the non-applicant No.1/complainant and Smt. Mayuri Deshmukh, learned APP for State. Perused the record and proceedings. 5. Learned Advocate for the accused submitted that the complainant has failed to establish the basic ingredients of Sec. 138 of the N.I.Act. Learned Advocate submitted that demand notice was not duly served to the accused and therefore, there was no cause of action for filing the complaint. Learned Advocate pointed out that the cheque obtained by force from the accused was misused by the complainant. Learned Advocate submitted that this defence has been fully established by leading cogent evidence by the accused. Learned Advocate submitted that presumption invoked against the accused under Sec. 139 of the N.I.Act was fully rebutted by the accused. 6. Learned Advocate for the complainant submitted that the Courts below have recorded concurrent findings of fact against the accused. In the submission of learned Advocate for the complainant the Courts below have not committed any error or mistake while arriving at a finding in favour of the complainant and therefore, in exercise of revisional jurisdiction, the interference is not warranted in the concurrent findings of fact. Learned Advocate pointed out that the notice sent to the accused by RPAD was returned back with postal endorsement "not claimed." Learned Advocate submitted that the notice sent to accused by UCP was not returned back. Learned Advocate pointed out that the notice was sent to the accused at his correct address. Learned Advocate pointed out that the summon in the criminal case was served to the accused at the same address. Learned Advocate submitted that on the basis of evidence the complainant has proved the basic ingredients of Sec. 138 of the N.I.Act. It is submitted that the evidence adduced by the accused is not sufficient to rebut the presumption invoked against him. 7. Learned Advocate submitted that on the basis of evidence the complainant has proved the basic ingredients of Sec. 138 of the N.I.Act. It is submitted that the evidence adduced by the accused is not sufficient to rebut the presumption invoked against him. 7. It is the case of the accused that he was not knowing the complainant. It is stated that the complainant with other persons came to his house, beat him and forcibly obtained the cheque from him. While considering the evidence adduced by the accused this defence is required to be borne in mind. The accused has admitted his signature on the cheque. Apart from signature of the accused on the cheque, the cheque bears the stamp of Prabhakar Trading. The cheque is at Exh.47. The accused has not explained as to how the cheque bears the stamp of Prabhakar Trading. If the cheque was obtained by force as stated, then the stamp on the cheque ought to have been explained by the accused. It is the defence of accused that he was severely beaten and by applying force the cheque was obtained. The accused did not lodge report to the police. Similarly, he did not intimate his bank to stop the payment of cheque. This conduct of the accused is not consistent with his defence. It is the defence of the accused that he was not well and therefore, he could not lodge the report. It is stated that he was suffering from heart ailment and therefore, he could not move out of his house. The witness examined to support this point has stated that accused had met with an accident and therefore, he had gone to meet him. He has further stated that the complainant and other persons came there, beaten the accused, forced him to sign the cheque. In my view, this defence is not probable and as such cannot be accepted. 8. In order to establish the transaction the complainant has produced on record the copies of the bills at Exhs.51 to 54. Exh. 50 is the summary of invoice. It shows that the accused had given D.D. of Rs.1, 30, 680.00 to the complainant. It is the case of the complainant that Rs.1, 30, 680.00 was received by him from the accused towards the part payment of the rice sold to accused. Exh.57 is the notice issued by the complainant to accused. Exh. 50 is the summary of invoice. It shows that the accused had given D.D. of Rs.1, 30, 680.00 to the complainant. It is the case of the complainant that Rs.1, 30, 680.00 was received by him from the accused towards the part payment of the rice sold to accused. Exh.57 is the notice issued by the complainant to accused. The dates of the bills have been mentioned in the notice. The relevant entries referred in the bills as well as in the notice are identical. The notice was admittedly sent by RPAD and UCP. Exh.58 and 59 are postal receipts. Exh.61 and 62 are RPAD envelops. The notices, as can be seen from the envelop were returned back with an endorsement "not claimed". In this case, summons was served to the accused at the address mentioned in the notice. It is seen that except the house number the remaining address is not disputed by the accused. It is not the case of the accused that he is having two residential premises at Telangkhedi, Ram Nagar, Nagpur. The documentary evidence on record is sufficient to prove the service of notice. Since the notice was sent to the accused at his correct address, the presumption under Sec. 27 of the General Clauses Act, 1897 would get attracted in this case. 9. On the basis of evidence the complainant has established the basic ingredients of Sec. 138 of the N.I. Act. 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. 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 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 was rightly invoked against the accused on the basis of the evidence. 10. The evidence adduced by accused is not sufficient to rebut the presumption invoked against him. The complainant has proved that towards the part payment of the rice purchased by the accused from him, the cheque was issued. He has proved that the cheque was issued towards the discharge of his legal liability. The Courts below have taken the evidence into consideration and rejected the defence of the accused. On going through the judgment and order passed by the learned Adhoc Sessions Judge, I am satisfied that learned Judge has not committed any mistake or error in accepting the case of the complainant and rejecting the defence of the accused. 11. Learned Advocate for the accused submitted that the substantive sentence of three months rigorous imprisonment is disproportionate to gravity of the offence proved against him. Learned Advocate pointed out that accused has been ordered to pay compensation of Rs.1, 60, 000.00. Learned Advocate submitted that the compensation awarded by the learned Magistrate in this case is sufficient to take care of basic grievance of the complainant. Learned Advocate further submitted that in order to take care of grievance of the complainant this Court may award reasonable additional compensation and modify the substantive sentence. 12. Learned Advocate for the complainant submitted that till date, the accused has deposited Rs.50, 000.00 only. He has not bothered to pay the remaining amount of compensation. Learned Advocate submitted that if reasonable amount towards the additional compensation is awarded then his grievance would be taken care of. 13. I have given thoughtful consideration to the submissions. The cheque was issued to clear the standing payment of rice purchased by the accused from the complainant. It was business transaction. Learned Advocate submitted that if reasonable amount towards the additional compensation is awarded then his grievance would be taken care of. 13. I have given thoughtful consideration to the submissions. The cheque was issued to clear the standing payment of rice purchased by the accused from the complainant. It was business transaction. Considering the nature of transaction, in my view, the submissions advanced by the learned Advocate for accused for modification of substantive sentence can be accepted obviously, subject to direction to pay additional compensation. The compensation awarded was Rs.1, 60, 000.00. The complainant in my view, must be interested in his money. Therefore, in the facts and circumstances, if additional compensation of Rs.50, 000.00 (Rupees Fifty Thousand Only) is awarded, it would take care of the grievance of the complainant. Therefore the substantive sentence awarded by the learned Judicial Magistrate, First Class, Gondia and confirmed by learned Adhoc Additional Sessions Judge, Gondia is modified. 14. In the facts and circumstances, I am of the view that no interference is warranted in the concurrent findings of fact recorded by the Courts below. The revision is liable to be dismissed. It is accordingly, dismissed. 15. In lieu of substantive sentence, the accused/applicant is directed to pay additional compensation of Rs.50, 000.00 (Rupees Fifty Thousand Only) over and above the compensation of Rs.1, 60, 000.00 already awarded by the trial Court. Thus, applicant/accused shall pay total compensation of Rs.2, 10, 000.00. The amount of Rs.50, 000.00 is already deposited by the accused. The accused/applicant is directed to pay balance amount of compensation of Rs.1, 60, 000.00 (Rupees One Lakh Sixty Thousand Only) within period of six weeks from today. If applicant/accused fails to deposit balance amount of compensation within six weeks from today then accused shall undergo simple imprisonment for two months. 16. Criminal Revision stands disposed of.