1.00. Present Criminal Revision Application, under section 397 read with section 401 of the Code of Criminal Procedure has been preferred by the petitioner herein – original accused to quash and set aside the impugned Judgement and Order of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Surat in Criminal Case No. 15553 of 2010 dtd.17/1/2012, by which the learned Magistrate has convicted the petitioner - original accused for the offence under section 138 of the Negotiable Instruments Act for dishonour of the cheque issued by the petitioner drawn in favour of the complainant and directing the petitioner to undergo Simple Imprisonment for a period of six months with fine of Rs.10,000/- and in default, to undergo further Simple Imprisonment for a period of one month. The petitioner - original accused has also prayed to quash and set aside the impugned Judgement and Order passed by the learned appellate court - learned Additional Sessions Judge, Surat in Criminal Appeal No.17 of 2012 dtd.18/9/2012 by which the learned appellate court has dismissed the said appeal confirming the Judgement and Order of conviction and sentence passed by the learned trial court. 2.00. That the respondent No.2 herein – original complainant filed a Criminal Complaint against the petitioner - original accused for the offence under section 138 of the Negotiable Instruments Act for dishonour of the Cheque NO.130756 of Bank of Baroda drawn in favour of the complainant for a sum of Rs.43 Lacs. It was the case on behalf of the complainant that he lent a sum of Rs.26,50,000/- to the accused and thereafter further lent a further sum of Rs.1,24,254/- by the complainant to the accused. That the accused paid a sum of Rs.10,150/- to the complainant by Cheque towards repayment of the amount borrowed from the complainant. That the accused, at the relevant time also executed two Promissory Notes for an amount of Rs.26.50 Lacs and Rs.1,24,254 on 31/3/2009 and 11/9/2009, respectively. It was the case on behalf of the original complainant that thereafter on 31/12/2009 the accused had drawn Cheque bearing No.189664 of Rs.27,64,000/- of ICICI Bank in favour of the complainant, which was towards the repayment of the principal amount. That another Cheque of Rs.15.36 Lacs dtd.31/12/2009 was also drawn by the accused of ICICI Bank towards payment of handsome return / interest in favour of the accused. Both the aforesaid cheques were deposited by the complainant in his accounts. However, the said cheques came to be returned on 8/10/2010 with an endorsement “drawers signature defers”. That thereafter the accused again had drawn a cheque bearing No.30756 of Bank of Baroda in favour of the complainant for a sum of Rs.43 Lacs. As per the complainant the said cheque was deposited by the complainant in his Bank Account, however the same came to be dishonoured / returned on 12/1/2010 with endorsement of “signature defers and insufficient balance”. Therefore, the complainant issued statutory notice to the accused on 18/1/2010 through his advocate which was issued by the accused on 19/1/2010. Since despite the notice the accused did not pay the amount in question to the complainant, the petitioner - original complainant has filed the aforesaid complaint for the offence under section 138 of the Negotiable Instruments Act requesting to convict the accused for the offence under section 138 of the Negotiable Instruments Act.
2.01. Upon service of the Summons, the accused appeared before the learned trial court and he pleaded not guilty and therefore he came to be tried for the offence under section 138 of the Negotiable Instruments Act.
2.02. To prove the case against the accused, the complainant examined himself on oath at Ex.9. He produced number of documentary evidences inclusive of Promissory Notes produced at Ex.Nos.11 and 12, earlier cheques which came to be returned / dishonoured and other documentary evidences, inclusive of the notices.
2.03. That after the evidence on behalf of the prosecution was closed, Further Statement of the accused came to be recorded under section 313 of the Code of Criminal Procedure wherein he denied having committed any offence.
2.04. Written submissions were also submitted on behalf of the complainant as well as accused.
2.05. That on appreciation of evidence and considering earlier two cheques, against which cheque in question was issued and considering the Promissory Notes issued by the accused and having found that all the ingredients of section 138 of the Negotiable Instruments Act are satisfied, the learned trial court – learned Additional Chief Judicial Magistrate, Surat, by the impugned Judgement and Order of conviction and sentence dtd.17/1/2012, has held the petitioner - original accused guilty for the offence under section 138 of the Negotiable Instruments Act and has imposed punishment and sentence of six months S.I. with fine of Rs.10,000 and in default, further one month S.I.
2.06. Being aggrieved by and dissatisfied with the Judgement and Order of conviction and sentence passed by the learned trial court – learned Additional Chief Judicial Magistrate, Surat in Criminal Case No.15553 of 2010 dtd.17/1/2012, petitioner - original accused preferred Criminal Appeal No.17 of 2012 before the learned Sessions Court, Surat and the learned Additional Sessions Judge, Surat by the impugned Judgement and Order has dismissed the said appeal confirming the Judgement and Order of conviction and sentence passed by the learned trial court.
2.07. Being aggrieved by and dissatisfied with the Judgement and Order passed by both the courts below convicting the petitioner herein – original accused for the offence under section 138 of the Negotiable Instruments Act, petitioner - original accused has preferred present Revision Application under section 397 read with section 401 of the Code of Criminal Procedure.
3.00. Mr.Pandey, learned advocate appearing on behalf of the petitioner - original accused has vehemently submitted that both the courts below have materially erred in convicting the petitioner for the offence under section 138 of the Negotiable Instruments Act for the dishonour of the Cheque No.130756 of Bank of Baroda drawn in favour of the complainant for a sum of Rs.43 Lacs. It is submitted that both the courts below have not properly appreciated the fact that signature on the Promissory Notes Ex.Nos.11 and 12 are different than the signature on the cheque in question.
3.01. Mr.Pandey, learned advocate appearing on behalf of the petitioner has further submitted that as such the name, date, amount in words and figures have not been written by the accused, meaning thereby cheque which has been obtained by the complainant was blank. It is submitted that the aforesaid has not been properly appreciated by both the courts below. It is submitted that as such the complainant has failed to prove legal debt/dues beyond reasonable doubt, as he has not produced any Books of Account or Income Tax Returns in support of his legal dues.
Making the above submissions it is requested to admit and allow the present Revision Application.
4.00. Heard Mr.Pandey, learned advocate appearing on behalf of the petitioner and Mr.L.R. Pujari, learned Additional Public Prosecutor appearing on behalf of the State and perused, considered and gone through the impugned Judgement and Orders passed by both the courts below convicting the petitioner - accused for the offence under section 138 of the Negotiable Instruments Act. This Court has also gone through the entire evidence on record received from the Record and Proceedings received from the learned trial court.
4.01. At the outset, it is required to be noted that there are two Promissory Notes issued by the original accused for which earlier two cheques were issued and the earlier cheques also came to be dishonoured / returned with endorsement “signature defers”. It is also required to be noted that the execution of the Promissory Notes by the accused in favour of the complainant has not been disputed. Under the circumstances, when the Promissory Notes executed by the accused has not been disputed by the accused, the debt is proved and therefore, the complainant was not required to further prove the legal debt and/or liability. Under the circumstances, the contention on behalf of the petitioner - accused that as the complainant has failed to prove the legal debt by producing Income Tax Returns etc., the impugned Judgement and Order passed by the learned trial court convicting the petitioner for the offence under section 138 of the Negotiable Instruments Act deserves to be quashed and set aside, cannot be accepted.
4.02. It is required to be noted that in the reply to the statutory notice the accused has come out with a case that Cheque No.130756 for Rs.43 Lacs was presented by the complainant without the consent of the accused and he has written to his Bank to that effect. However, as observed by the learned appellate court no such letter is produced on record on behalf of the accused. The learned appellate court has also considered the fact that the wife of the accused had lodged a complaints against the complainant and his family members, copies of which are produced at Ex.Nos.22 and 23 wherein she has stated that eight cheques were given by her husband i.e. accused to the present complaint in question. However, in Ex.24 i.e. reply to the statutory notice, it has been stated that the complainant has illegally procured those cheques. The learned appellate court has also noted that if that was so, the wife of the accused would have mentioned the said fact in her complaint or the accused could have lodge separate complaint in this regard. Under the circumstances, and considering the Promissory Notes – Ex.Nos.11 and 12, execution of which by the accused, is not disputed by the accused and when all ingredients of section 138 of the Negotiable Instruments Act are satisfied and thereafter when the learned Magistrate has convicted the accused for the offence under section 138 of the Negotiable Instruments Act and imposed punishment of six months S.I., with fine of Rs.10,000/-, it cannot be said that the learned trial court has committed any error and/or illegality. The learned appellate court has also not committed any error and/or illegality in confirming the same. No interference of this Court in exercise of revisional jurisdiction is called for. As stated above, there are concurrent finding of facts by both the courts below in holding the petitioner herein – original accused guilty for the offence under section 138 of the Negotiable Instruments Act and the same are on appreciation of evidence which are not required to be interfered with by this Court in exercise of revisional powers.
4.03. In view of the above and for the reasons stated above, Criminal Revision Application No.478 of 2012 is dismissed. Consequently, Criminal Misc.Application No. 13850 of 2012 preferred by the petitioner herein – original accused for bail also deserves to be dismissed and is accordingly dismissed.
[M.R. SHAH, J.] rafik