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2023 DIGILAW 1473 (BOM)

Balabhau Haribhau Kavanpure v. Sai Auto Agencies

2023-07-10

G.A.SANAP

body2023
JUDGMENT/ORDER 1. In this revision, challenge is to the judgment and order dtd. 10/4/2018, passed by learned Sessions Judge, Amravati, whereby the learned Sessions Judge dismissed the appeal filed by the applicant/ accused against his conviction and sentence for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act" for short), awarded by learned Judicial Magistrate, First Class, Court No.3, Amravati. Learned Judicial Magistrate, First Class, Amravati had sentenced the accused to undergo rigorous imprisonment for three months and to pay compensation of Rs.1, 00, 000.00 (Rupees One lakh only) and in default to suffer simple imprisonment for six months. 2. In this judgment, the parties would be referred by their nomenclature in the complaint. The applicant is the original accused and the non-applicant is the original complainant. The non-applicant is a partnership firm represented by its partner. It is the case of the complainant that the accused on 10/10/2008 had purchased 'Eicher 485' tractor on credit from the complainant. At the time of delivery of the tractor, the accused had not paid a single pie. Delivery of the tractor was made on credit due to cut-throat competition in the market and to achieve the target of the manufacturer. The accused had informed the complainant that he would be applying for loan from the bank and after sanction of the loan, he would pay the price of the tractor. 3. It is stated that in December-2013, the accused approached the partnership firm of the complainant and informed that the bank has approved the loan for purchase of tractor. However, the bank has put a condition that he should deposit Rs.95, 000.00 towards down payment. He had no money. He made a written request to the partner of the complainant to advance him Rs.95, 000.00 for being deposited as down payment in the bank. The complainant, considering the difficulty of the accused, on 10/10/2008 paid Rs.95, 000.00 in cash. The accused, on that date, executed 'Usanwar Chitthi'. He agreed to return the amount on or before 30/3/2009. In order to secure the interest of the complainant, he issued a cheque dtd. 30/3/2009 for Rs.95, 000.00, drawn on his account maintained with Amravati District Central Cooperative Bank, branch Haturna. It is further stated that on 18/12/2008, the accused came to the showroom to deposit Rs.1, 50, 000.00 and demanded the receipt. In order to secure the interest of the complainant, he issued a cheque dtd. 30/3/2009 for Rs.95, 000.00, drawn on his account maintained with Amravati District Central Cooperative Bank, branch Haturna. It is further stated that on 18/12/2008, the accused came to the showroom to deposit Rs.1, 50, 000.00 and demanded the receipt. The complainant suggested him to deposit only Rs.5, 000.00 against hand loan of Rs.95, 000.00. The accused thereafter deposited Rs.5, 000.00, but failed to repay Rs.90, 000.00. The complainant, therefore, presented the cheque for encashment on 29/4/2009. It was dishonoured on the ground of "insufficient funds" in the account of the accused to honour the cheque. The complainant issued notice dtd. 7/7/2009. Notice was received by the accused. The accused neither replied the notice nor repaid the amount. On filing of the complaint, learned Magistrate took cognizance and issued process against the accused. 4. CW1 is the complainant. CW2 is the Manager of the complainant agency. The accused examined himself in support of his defence. Learned Magistrate, on consideration of the evidence, convicted and sentenced the accused as above. The appeal filed against the order of conviction and sentence was dismissed by the learned Sessions Judge. The accused is, therefore, before this Court. 5. I have heard learned advocate Mr. Manojkumar Mishra for the accused and learned advocate Mr. Ritesh N. Badhe for the complainant. Perused the record and proceedings. 6. Learned advocate for the accused submitted that the case of the complainant is self-contradictory and therefore, the accused is required to be given benefit of doubt. Learned advocate pointed out that the accused has denied his signature on the promissory note, alleged to have been executed by him. Learned advocate submitted that the case of the complainant is totally unbelievable and therefore, the Courts below have failed to take the said aspect into consideration. Learned advocate submitted that the accused had applied for finance of Rs.3, 00, 000.00 (Rupees Three lakhs only). It was sanctioned and directly deposited in the account of the complainant. Learned advocate submitted that at the time of delivery, balance price of the tractor was paid in cash. Learned advocate submitted that the accused has undergone imprisonment for two months and he has so far deposited Rs.65, 000.00 (Rupees Sixty Five thousand only). It was sanctioned and directly deposited in the account of the complainant. Learned advocate submitted that at the time of delivery, balance price of the tractor was paid in cash. Learned advocate submitted that the accused has undergone imprisonment for two months and he has so far deposited Rs.65, 000.00 (Rupees Sixty Five thousand only). Learned advocate, therefore, submits that if the Court is not inclined to set aside the conviction and sentence, then the substantive sentence may be reduced. 7. Learned advocate for the complainant submitted that the Courts below have recorded concurrent findings of fact on the basis of the evidence and therefore, the concurrent findings of fact do not warrant interference. Learned advocate pointed out that the nature of the transaction has been proved on the basis of voluminous documentary evidence. Learned advocate further pointed out that conduct of the accused is not consistent with his defence. Learned Advocate submitted that the accused was liable to pay Rs.90, 000.00 to the complainant being the cheque amount. On receipt of the demand notice, he was expected to reply the same and put forth his defence. Learned advocate submitted that on the basis of the oral and documentary evidence, the complainant has proved the basic ingredients of Sec. 138 of the N.I. Act and on the basis of the same, presumption under Ss. 118 and 139 of the N.I. Act was rightly invoked against him. Learned advocate submitted that no interference is warranted in well reasoned judgment and order passed by the learned Sessions Judge. 8. I have gone through the record and proceedings. The complainant has adduced oral as well as documentary evidence. The accused has admitted his signature on the cheque. The accused has admitted receipt of demand notice dtd. 7/7/2009. The accused has admitted purchase of tractor from the complainant. It is the case of the complainant that on account of cut-throat competition in the market and to meet the target given by the manufacturer, the tractor in question was given to the accused on credit. It is the further case of the complainant that when the accused approached him and demanded Rs.95, 000.00 for depositing with the bank as down payment, considering the condition of the accused, the amount of 95, 000/- was advanced to him. It is the further case of the complainant that when the accused approached him and demanded Rs.95, 000.00 for depositing with the bank as down payment, considering the condition of the accused, the amount of 95, 000/- was advanced to him. It is the case of the complainant that on the date of payment of Rs.95, 000.00, the accused had executed 'usanwar chitthi' and also issued a cheque. The 'usanwar chitthi' is at Exh.29. The accused has denied execution of this document. It is seen on perusal of the record that the complainant, by adducing cogent evidence, has proved the said document. The accused has not specifically denied his signature on this document. It is further seen that part of his signature is on the revenue stamp and part signature is on the paper. The transaction has been proved on the basis of the oral as well as on the basis of contemporaneous documentary evidence. The accused admitted issuance of the cheque. The amount of cheque was Rs.95, 000.00. The complainant in all fairness has stated in the notice that in the month of December, the accused had paid Rs.5, 000.00 and therefore, demand of Rs.90, 000.00 was made in the notice. The complainant on the basis of the evidence has proved the basic ingredients of Sec. 138 of the N.I. Act. The only question that needs to be considered is whether the evidence is sufficient to lay foundation to invoke the presumption under Ss. 118 and 139 of the N.I. Act. 9. 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. 10. In my view, the evidence on record is sufficient to prove the basic ingredients of Sec. 138 of the N.I. Act. The complainant has established the foundational facts to invoke the presumption under Ss. 118 and 139 of the N.I. Act against the accused. 10. In my view, the evidence on record is sufficient to prove the basic ingredients of Sec. 138 of the N.I. Act. The complainant has established the foundational facts to invoke the presumption under Ss. 118 and 139 of the N.I. Act against the accused. The complainant has proved that the cheque was issued in discharge of legal liability of the accused. The accused has adduced evidence. The question is whether the evidence adduced by the accused is sufficient to rebut the presumption. Perusal of statement of accused under Sec. 313 of Cr.P.C. would show that he has not categorically put forth his defence. The accused in view of admission of signature on the cheque was required to lead cogent evidence to rebut the presumption. In the teeth of the undisputed facts and evidence on record, I am satisfied that the evidence adduced by the accused is not sufficient to rebut the presumption. The Courts below have taken entire evidence into consideration and on proper appreciation of the evidence, accepted the case of the complainant. On perusal of the record, I am satisfied that the concurrent findings of fact recorded by the Courts below are on the basis of the evidence on record and supported by the cogent reasons . In my view, therefore, no interference is warranted in the concurrent findings of fact. The Courts below have not committed any error or mistake while accepting the case of the complainant and rejecting the defence of the accused. 11. The next important question is with regard to the modification of substantive sentence. Learned advocate for the accused has pointed out that the substantive sentence in this case was not at all warranted. Besides, learned advocate submitted that the accused has undergone substantive sentence of two months. Learned advocate, therefore, submitted that the substantive sentence of two months would meet the ends of justice. The accused has deposited Rs.65, 000.00 out of Rs.1, 00, 000.00 awarded as compensation. In my view, in the facts and circumstances, modification of sentence to the period undergone would meet the ends of justice. Therefore, on this ground the modification in the substantive sentence is required. 12. (i) Accordingly, the substantive sentence awarded by the learned Judicial Magistrate, First Class, Court No.3, Amravati on 4/4/2013 in Summary Criminal Case No. 3385/2009 and confirmed by learned Sessions Judge, Amravati vide judgment and order dtd. Therefore, on this ground the modification in the substantive sentence is required. 12. (i) Accordingly, the substantive sentence awarded by the learned Judicial Magistrate, First Class, Court No.3, Amravati on 4/4/2013 in Summary Criminal Case No. 3385/2009 and confirmed by learned Sessions Judge, Amravati vide judgment and order dtd. 10/4/2018 in Criminal Appeal No.98/2013, is modified. (ii) The substantive sentence awarded by the learned Judicial Magistrate, First class, Court No.3, Amravati is reduced to the period of imprisonment already suffered by the accused. (iii) As far as amount of compensation is concerned, the accused shall pay the remaining amount of compensation within two months from today. In default of payment of remaining amount of compensation within two months, the accused shall undergo simple imprisonment for fifteen days. (iv) The amount of compensation be deposited in the trial Court. (v) The revision stands dismissed.