[1.0] As common question of law and facts arise in this group of Revision Applications, all these Revision Applications are heard, decided and disposed of by this common judgment and order. [2.0] Criminal Revision Application No.485 of 2009 under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant herein – original accused challenging the impugned judgment and order of conviction dated 30.04.2007 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case No.2397 of 2001 convicting the applicant – original accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) and directing the applicant – accused to undergo sentence of four months' SI with fine of Rs.1,000/ and with compensation of Rs.1,99,000/ as well as the impugned judgment and order dated 14.07.2009 passed by the learned Additional City Sessions Judge, Court No.15, Ahmedabad in Criminal Appeal No.56 of 2007 by which the learned Appellate Court has dismissed the said Appeal preferred by the applicant herein – accused confirming the judgment and order of conviction and sentence passed by the learned trial Court.
[2.1] Criminal Revision Application No.488 of 2009 under Section 397 read with Section 401 of the CrPC has been preferred by the applicant herein – original accused challenging the impugned judgment and order of conviction dated 02.05.2007 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case No.2400 of 2001 convicting the applicant – original accused for the offence under Section 138 of the NI Act and directing the applicant – accused to undergo sentence of five months' SI with fine of Rs.1,500/ and with compensation of Rs.2,00,000/ as well as the impugned judgment and order dated 14.07.2009 passed by the learned Additional City Sessions Judge, Court No.15, Ahmedabad in Criminal Appeal No.59 of 2007 by which the learned Appellate Court has dismissed the said Appeal preferred by the applicant herein – accused confirming the judgment and order of conviction and sentence passed by the learned trial Court.
[2.2] Criminal Revision Application No.490 of 2009 under Section 397 read with Section 401 of the CrPC has been preferred by the applicant herein – original accused challenging the impugned judgment and order of conviction dated 05.05.2007 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case No.2402 of 2001 convicting the applicant – original accused for the offence under Section 138 of the NI Act and directing the applicant – accused to undergo sentence of five months' SI with fine of Rs.1,500/ and with compensation of Rs.3,00,000/ as well as the impugned judgment and order dated 14.07.2009 passed by the learned Additional City Sessions Judge, Court No.15, Ahmedabad in Criminal Appeal No.60 of 2007 by which the learned Appellate Court has dismissed the said Appeal preferred by the applicant herein – accused confirming the judgment and order of conviction and sentence passed by the learned trial Court.
[2.3] Criminal Revision Application No.491 of 2009 under Section 397 read with Section 401 of the CrPC has been preferred by the applicant herein – original accused challenging the impugned judgment and order of conviction dated 05.05.2007 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case No.2403 of 2003 convicting the applicant – original accused for the offence under Section 138 of the NI Act and directing the applicant – accused to undergo sentence of five months' SI with fine of Rs.1,500/ and with compensation of Rs.3,00,000/ as well as the impugned judgment and order dated 14.07.2009 passed by the learned Additional City Sessions Judge, Court No.15, Ahmedabad in Criminal Appeal No.61 of 2007 by which the learned Appellate Court has dismissed the said Appeal preferred by the applicant herein – accused confirming the judgment and order of conviction and sentence passed by the learned trial Court.
[3.0] That respondent No.2 herein – original complainant instituted respective criminal cases against the applicant herein, through her Power of Attorney Nitinkumar Maneklal Patel in the Court of learned Metropolitan Magistrate, Ahmedabad for the offence under Section 138 of the NI Act for dishonour of the respective cheques which came to be dishonored with an endorsement “Refer to drawer due to insufficient funds”. It was the case on behalf of the original complainant that the statutory notice as provided under Section 138 of the NI Act were issued upon the accused by RPAD as well as UPC, however, the notices sent through RPAD came to be returned with an endorsement “Not Claimed” as the same were refused by the accused, however, the notices sent through UPC came to be served upon the accused. It was also the case on behalf of the original complainant that despite the service of the statutory notice, the original accused neither replied to the said statutory notices nor made any payment under the cheques which came to be dishonored and therefore, it was requested to convict the accused persons for the offence under Section 138 of the NI Act.
[3.1] That on having served with the summonses, the accused appeared before the learned Magistrate, pleaded not guilty and therefore, came to be tried for the offence under Section 138 of the NI Act. That on behalf of the complainant – original complainant – POA Nitinbhai Patel came to be examined at Exh.10 and one Babubhai Dahyabhai came to be examined at Exh.24. Documentary evidences came to be produced at Exhs.30 to 46 to prove the statutory notices, the debt. After the evidence was closed, Further Statement of the Accused under Section 313 of the CrPC came to be recorded. Not only that but the accused herself examined herself on oath at Exh.28. It was the case on behalf of the accused that her husband was doing the business in the name of Krishna Investments and Krishna Enterprise and in the Krishna Investment, her signature was used and that the entire administration and management was done through / by her husband. It was also the case on behalf of the accused that her husband used to get her signatures on the cheques. Therefore, it was submitted that the applicant has not committed any offence under Section 138 of the NI Act as alleged. That on appreciation of evidence and as neither the receipt of the cheque amount by her, which were deposited in the account of Krishna Investment, was disputed nor even the signature on the cheques was disputed nor it was proved that the amount which was credited in the account of Krishna Investment of whom the applicant is the proprietor has been repaid and considering the fact that the ingredients of NI Act have been satisfied, the learned Metropolitan Magistrate, Court No.20, Ahmedabad by judgment and order dated 30.04.2007 has convicted the applicant herein – original accused for the offence punishable under Section 138 of the NI Act and has directed the applicant to undergo sentence for four months' SI with fine of Rs.1,000/ and in default to undergo further 20 days' SI and also directed the applicant to pay to the complainant the cheque towards the compensation.
[3.2] Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Metropolitan Magistrate in respective criminal cases referred to herein above, the applicant herein – original appellant – original accused preferred respective Criminal Appeals before the learned City Sessions Court, Ahmedabad City and by impugned judgment and orders, the learned City Sessions Judge, Court No.15, Ahmedabad has dismissed all the aforesaid appeals confirming the judgment and order of conviction and sentence passed by the learned trial Court in respective Criminal Cases referred to herein above.
[3.3] Feeling aggrieved and dissatisfied with the impugned judgment and orders passed by the Courts below in convicting the applicant for the offence under Section 138 of the NI Act, the applicant – original accused has preferred the present Revision Applications under Section 397 read with Section 401 of the CrPC.
[4.0] Shri Panthil Majmudar, learned advocate appearing on behalf of the applicant – original accused has mainly submitted that the learned Metropolitan Magistrate has committed an error and/or illegality in convicting the applicant for the offence under Section 138 of the NI Act relying upon the deposition of the POA of the original complainant. It is submitted that as the POA of the original complainant would not have any personal knowledge of the transactions and therefore, the deposition of the POA cannot be relied upon. In support of his above submissions, he has relied upon the following decisions of the Hon'ble Supreme Court as well as this Court.
1. Janki Vashdeo Bhojwani & Anr. vs. Indusind Bank Ltd.
AIR 2005 Supreme Court 439
2. Patel Parshottambhai Bhagwanbhai vs. State of Gujarat & Anr. 2007(3) GLR 2259
3. (M/s.) Shankar Finance & Investments vs. State of Andra Pradesh and Os.
2009(1) GLH
4. Nileshwari M. Shah Owner & Proprietor of Perfection Engineering Co. Ltd. vs. State of Gujarat & Ors.
2010(4) GL R 2902
5. Man Kaur (Dead) By LRs vs. Hartar Singh Sangha (2010)10 SCC 512
6. Milind Shripad Chandurkar vs. Kalim M. Khan & Anr. (2011)4 SCC 275
7. Kaushalya Devi Massand vs. Roopkishore Khore (2011)4 SCC 593
8. Nitinbhai Saevatilal Shah & Anr. vs. Manubhai Manjibhai Panchal & Anr.
(2011)9 SCC 638 [4.1] He has also further tried to submit that as such the issuance of the cheques and their liability to pay the cheque amount was disputed by the accused, thereafter it was for the original complainant more particularly the principal to prove the legal debt and liability, which the principal has failed to prove by stepping into the witness box and therefore also, the impugned judgment and orders passed by the learned trial Court confirmed by the learned Appellate Court deserves to be quashed and set aside.
[4.2] Shri Majmudar, learned advocate appearing on behalf of the applicant – original accused has stated that still the applicant is ready and willing to pay 25% of the cheques amount towards full and final settlement if the complainant is agreeable to accept the same.
No other submissions have been made. Making above submissions and relying upon above decisions, it is requested to allow the present Revision Applications.
[5.0] All these Revision Applications are opposed by Shri G.D.
Bhatt, learned advocate appearing on behalf of the original complainant. It is submitted that as such in the present case the applicant – original accused herself has entered into the witness box and has deposed on oath in which she has neither disputed the issuance of the cheques nor disputed the signatures on the cheques nor even has disputed that the cheque amount has not been deposited in the account of Krishna Investment of which the applicant is the proprietor. It is submitted that even there was no reply to the statutory notice by the applicant and therefore, she never disputed the legal debt or liability. It is, therefore, submitted that even if assuming for the sake of argument that deposition of the POA would not have been relied upon, in that case also, in view of the aforesaid undisputed facts, no illegality has been committed by the learned trial Court convicting the accused for the offence under Section 138 of the NI Act and the same has been rightly confirmed by the learned Appellate Court. It is submitted that as such there are concurrent findings of fact given by both the Courts below holding the applicant guilty for the offence under Section 138 of the NI Act which are on appreciation of evidence, which are not required to be interfered by this Court in exercise of revisional jurisdiction.
[5.1] Now, so far as the offer made on behalf of the complainant to pay 25% of the respective cheque amount as full and final settlement is concerned, Shri Bhatt, learned advocate appearing on behalf of the complainant has stated that when the amount has been paid to the accused, which has been deposited in their account and the same is not repaid, the complainant is not agreeable to accept 25% of the respective cheque amount as full and final settlement as the same is absolutely unreasonable.
Making above submissions it is requested to dismiss the present Revision Applications.
[6.0] Heard learned advocates appearing on behalf of the respective parties at length. Perused and considered the impugned judgment and orders passed by the Courts below as well as the entire evidences from the Record & Proceedings from the learned trial Court.
[6.1] At the outset it is required to be noted that as such there are concurrent findings of fact given by both the Courts below convicting the applicant herein – original accused for the offence under Section 138 of the NI Act with respect to the dishonor of the respective cheques, which are on appreciation of evidence and as having found that all the conditions of Section 138 of the NI Act are satisfied, the accused has been convicted for the offence under Section 138 of the NI Act and therefore, as such the same are not required to be interfered by this Court in exercise of revisional jurisdiction.
[6.2] Even otherwise this Court has considered the merits of the case. At the outset it is required to be noted that the only and main contention on behalf of the applicant – accused is that on behalf of the principal, her POA has deposed which is not permissible and as the POA may not have any personal knowledge about the transactions, his deposition cannot be relied upon and therefore, the learned Magistrate has committed error in convicting the applicant for the offence under Section 138 of the NI Act relying upon the deposition of the POA.
[6.3] However, it is required to be noted that in the present case apart from the further statement of the accused under Section 313 of the CrPC was recorded, the original accused has stepped into the witness box and has given the evidence/deposition on oath in which she has neither disputed issuance of the cheques nor disputed the receipt of the amount from the complainant as alleged nor disputed the signatures on the cheques nor it was the case on behalf of the applicant – accused that the amounts which was received from the complainant have been repaid. In view of the aforesaid facts and circumstances of the case, even if for the sake of arguments it is accepted that the deposition of the POA could have been relied upon or not, when the applicant accused has neither disputed the issuance of the cheques nor has disputed receipt of the amounts for which the cheques have been issued nor has disputed the signatures on the cheques nor it is the case on behalf of the applicant accused that the cheques amount has been repaid and when the cheques which are issued are returned with an endorsement “Refer to drawer” as there was 'no sufficient fund' in the account and when all other conditions of Section 138 of the NI Act are satisfied and when thereafter the learned Magistrate has convicted the accused for the offence under Section 138 of the NI Act, it cannot be said that the learned trial Court has committed any error and/or illegality in convicting the applicant for the offence under Section 138 of the NI Act. From the deposition / evidence of the accused herself, the applicant can be convicted for the offence under Section 138 of the NI Act.
[6.4] Now, so far as the submissions on behalf of the applicant – accused that the principal has not proved the legal debt and liability under the respective cheques, which are dishonored, by stepping into the witness box and by giving the evidence is concerned, at the outset it is required to be noted that as such there is a presumption under Section 139 of the NI Act that the cheques have been issued for legal debt and liability. However, such a presumption is rebuttable. As stated herein above, in the present case, the applicant – accused has neither disputed issuance of the cheques nor disputed the receipt of the amount from the complainant as alleged nor disputed the signatures on the cheques nor it was the case on behalf of the applicant – accused that the amounts which was received from the complainant have been repaid and therefore, when the applicant – accused herself has not disputed the legal debt and liability and there is a presumption, the complainant was not required to thereafter further prove the legal debt and liability which was not even disputed by the applicant accused.
[6.5] Now, so far as the proposal on behalf of the applicant – accused that she is ready and willing to pay 25% of the respective cheques amount as full and final settlement is concerned, apart from the fact that the original complainant is not agreeable, even it appears to the Court that the said proposal is absolutely unreasonable. When the amount for which the cheques have been issued are deposited/credited in the proprietary firm of the applicant and the same is not returned and the cheques are dishonored / returned and thereafter to make the proposal to pay only 25% of the cheques amount is absolutely unreasonable and dishonest proposal. Under the circumstances, no illegality has been committed by the Courts below in convicting the applicant – accused for the offence under Section 138 of the NI Act with respect to dishonor of cheques, which calls for interference of this Court in exercise of powers under revisional jurisdiction.
[6.6] Under the circumstances, the decisions which are relied upon by the learned advocate appearing on behalf of the applicant – POA referred to herein above shall not be applicable in the facts and circumstances of the present case and therefore, the same will not be of any assistance to the applicant – accused.
[7.0] In view of the above and for the reasons stated above, all these Criminal Revision Applications fail and same deserve to be dismissed and are, accordingly, dismissed. Rule is discharged in each of the Criminal Revision Applications. Adinterim relief granted earlier stands vacated forthwith.
(M.R. Shah, J.) Menon