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2023 DIGILAW 1531 (BOM)

Hasmukh S Dhruv v. Manikrao

2023-07-17

G.A.SANAP

body2023
JUDGMENT/ORDER 1. Heard. 2. In this revision application, challenge is to the judgment and order dtd. 4/1/2019, passed by the learned Additional Sessions Judge, Akola, whereby the learned Sessions Judge dismissed the appeal filed by the applicant/accused against his conviction and sentence awarded by the learned Judicial Magistrate First Class, Akola for the offence punishable under Sec. 138 of the Negotiable Instrument Act, 1881 (For short 'the N. I. Act'). Learned Magistrate on conviction had sentenced the applicant/ accused to pay fine of Rs.95, 000.00 and in default of payment of fine to suffer simple imprisonment for three months. 3. The facts are as follows: In this judgment, the parties would be referred by their nomenclature in the complaint. The applicant is the accused and the non-applicant No.1 is the complainant. It is the case of the complainant that on account of his cordial relations with the accused he gave hand loan of Rs.60, 000.00 to the accused. The accused, at that time, issued a cheque bearing No. 506362 dtd. 10/7/2009 of Rs.60, 000.00 drawn on his account maintained with Bank of Baroda, Branch Akola. Despite demand the accused did not repay the loan amount. Complainant, therefore, presented the cheque for encashment. The complainant received the intimation from his banker that the cheque was dishonored on the ground of insufficient funds in the account of accused. The complainant, therefore, issued the notice dtd. 31/12/2009 through his Advocate. The notice was duly served to the accused. The accused neither paid the cheque amount nor replied the notice. Therefore, the Complaint was filed by the complainant. Learned Magistrate took the cognizance of an offence under Sec. 138 of the N. I. Act and issued the process. 4. The complainant examined himself and one more witness to support his case. Learned Magistrate on taking the evidence into consideration held the accused guilty and sentenced him, as above. The appeal filed by the accused in the Sessions Court, Akola was dismissed. The accused is therefore before this Court. 5. I have heard the learned Advocate Mr Girish Dipwani for the accused/applicant and learned APP Ms Mayuri Deshmukh for the State. Record shows that Advocate by name Kartik Rao appeared on behalf of the complainant. However, he did not file his power. Learned Advocate for the complainant is absent today. The accused is therefore before this Court. 5. I have heard the learned Advocate Mr Girish Dipwani for the accused/applicant and learned APP Ms Mayuri Deshmukh for the State. Record shows that Advocate by name Kartik Rao appeared on behalf of the complainant. However, he did not file his power. Learned Advocate for the complainant is absent today. With the assistance of the learned Advocate for the accused and the learned APP, I have gone through the record and proceedings. 6. Learned Advocate for the accused submitted that the accused has deposited the fine amount of Rs.95, 000.00, as ordered by the Courts below. Learned Advocate besides, submitted that the complainant has failed to prove the basic ingredients of Sec. 138 of the N. I. Act. Learned Advocate submitted that on the basis of the evidence adduced by the complainant foundational fact was not proved to invoke the presumption against the accused provided under Ss. 118 and 139 of the N. I. Act against the accused. Learned Advocate further submitted that the material on record is sufficient to rebut the presumption sought to be invoked against the accused. 7. Learned APP submitted that the Courts below have recorded concurrent findings of fact. In the submission of learned APP the available evidence on record is sufficient to prove the basic ingredients of Sec. 138 of the N. I. Act. Learned APP pointed out that the accused has admitted the receipt of notice, but he failed to reply the said notice or to pay the amount of cheque. Learned APP further submitted that the case was made out by the complainant to attract the presumption provided under the law against the accused. Learned APP submitted that no interference is warranted in the concurrent findings of fact recorded by the Courts below. 8. The complainant has examined himself as well as one more witness. Witness No. 2 was examined by the complainant to substantiate his claim. The accused has admitted the issuance of cheque. He has admitted the receipt of demand notice. He has also admitted that on receipt of demand notice he neither paid the cheque amount nor replied the said notice. It is his defence that witness No. 2 Mangesh Bhimrao Wadekar is son-in-law of the complainant and at the relevant time the dispute between the Mangesh and his wife was going on. He has also admitted that on receipt of demand notice he neither paid the cheque amount nor replied the said notice. It is his defence that witness No. 2 Mangesh Bhimrao Wadekar is son-in-law of the complainant and at the relevant time the dispute between the Mangesh and his wife was going on. They were planning to settle the dispute and therefore, in order to help Mangesh, being his friend, he issued two signed cheques to Mangesh. It is his defence that the complainant obtained the custody of the cheques from Mangesh and misused the same. It is seen on perusal of the judgment and order passed by the learned Sessions Judge that learned Judge has properly evaluated the defence of the accused and rejected the same. 9. The complainant has deposed in his evidence consistence with the facts stated in the complaint. Witness No. 2, the son-in-law of the complainant, has deposed and completely demolished the defence of the accused. Perusal of their evidence would show that no material was brought in the cross examination to indicate that there was dispute between Mangesh and his wife, as sought to be made out by the accused. Therefore, in my view, the Courts below have rightly rejected this defence. 10. The accused has admitted issuance of cheque and the amount of the cheque. The demand notice was duly served upon the accused. The conduct of the accused is not consistent with the conduct of the man of ordinary prudence placed in the similar situation. Consistent with the conduct of the man of ordinary prudence, in case of misuse of cheque in this manner, the accused would have immediately reacted and replied the said notice. The silence on the part of the accused, in not acting consistent with defence, is against him. There is no explanation on record. The evidence on record is, therefore, sufficient to prove the foundational facts to invoke the presumption against the accused as provided under Ss. 118 and 139 of the N. I. Act, Akola. 11. 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. 11. 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 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. 12. In the light of the above, the defence of the accused needs to be appreciated. The accused has not adduced oral as well as documentary evidence. He has been relying upon the so called material brought on record in the cross examination of the PW-1 and 2. Perusal of their cross examination would show that except suggestions no other material has been elicited in their cross examination to discard their evidence and to lay foundation to the defence of the accused. Perusal of the record would show that there is no material on record to rebut the presumption invoked against the accused under Ss. 118 and 139 of the N. I. Act. 13. It is seen on perusal of the record and particularly judgment and order passed by the learned Additional Sessions Judge that the learned Judge has properly appreciated the evidence on record and the learned Judge on re-appreciation of evidence recorded his agreement with the findings of fact recorded by the learned Magistrate. On going through the record, I am satisfied that there is no error committed by the Courts below in arriving at the findings. As such, I do not see any substance in the revision application. The revision application is accordingly dismissed. 14. On going through the record, I am satisfied that there is no error committed by the Courts below in arriving at the findings. As such, I do not see any substance in the revision application. The revision application is accordingly dismissed. 14. As far as the complainant is concerned, his grievance has been taken care of by depositing the amount of Rs.95, 000.00 awarded by way of fine and against the cheque amount of Rs.60, 000.00. Liberty is granted to the complainant to withdraw the amount, if any, deposited by the accused in the trial Court. 15. The criminal revision application stands disposed of.