1. The present Criminal Revision Application u/s.397 read with 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 dated 18/07/2002 passed by learned Chief Judicial Magistrate, Nadiad in Criminal Case No.1190 of 1990 convicting the petitioner herein for the offence punishable u/s.138 of the Negotiable Instruments Act and imposing punishment to undergo sentence of six months SI and to pay fine of Rs.5,000/- and in default, to undergo further SI of one month as well as impugned judgement and order dated 10/12/2004 passed by learned Appellate Court – learned Joint District Judge and Presiding Officer, 5th Fast Track Court, Nadiad in Criminal Appeal No.44 of 2002, by which, learned Appellate Court has dismissed the said appeal preferred by the petitioner herein – original accused convicting the petitioner herein - original accused for the offence punishable u/s.138 of the Negotiable Instruments Act.
2. That respondent No.1 herein – original complainant filed criminal complaint in the Court of learned Chief Judicial Magistrate, Nadiad against the petitioner herein – original accused for the offence punishable u/s.138 of the Negotiable Instruments Act, which was numbered as Criminal Case No.1190 of 1990 for dishonour of two cheques for an amount of Rs.15,000/- and Rs.5,000/- respectively. It was the case on behalf of the original complainant that he was owner of plot No.13 situated at Nadiad, which was sold to the original accused for sum of Rs.20,000/- and sale deed was executed in favour of the original accused and towards sale consideration the original accused gave two separate cheques dated 05/01/1990 for Rs.15,000/- as well as for Rs.5,000/- respectively and at the time of issuance of the cheques, he also executed one document on stamp paper dated 05/05/1988. It was the case on behalf of the original complainant that at the time when cheques were issued and given, writing document dated 05/05/1988 were given, it was submitted by the original accused that as and when the said cheques are deposited, the same shall be honoured and, therefore, the complainant executed sale deed of the aforesaid plot in favour of the original accused.
It was the case on behalf of the complainant that thereafter the said cheques were deposited on 06/01/990 and the same came to be returned with an endorsement that “Payment stopped by Drawer”. It was the case on behalf of the original complainant that thereafter the complainant gave statutory notice upon the accused as required u/s.138 of the Negotiable Instruments Act and though the said notice dated 08/01/1990 was served upon the accused, neither the same was replied nor the amount under the cheques were paid and, therefore, it was submitted that the accused have committed an offence punishable u/s.138 of the Negotiable Instruments Act and, therefore, it was requested to convict the accused for the offence punishable u/s.138 of the Negotiable Instruments Act. That on service of summons, the petitioner herein – original accused appeared before learned Magistrate, his plea was recorded and he pleaded not guilty and, therefore, he came to be tried for the offence punishable u/s.138 of the Negotiable Instruments Act. That on behalf of the complainant, the complainant himself came to be examined at Exh.20 and he also examined other witnesses at Exh.47, 32, 61, 63 to prove the case against the original accused. That the complainant also produced documentary evidence. That after examining evidence on behalf of the prosecution, further statement of the accused also came to be recorded u/s.313 of the Code of Criminal Procedure and he denied allegation of committing an offence punishable u/s.138 of the Negotiable Instruments Act. That on appreciation of evidence, learned Chief Judicial Magistrate, Nadiad held the accused guilty for the offence punishable u/s.138 of the Negotiable Instruments Act and consequently convicted the accused for the offence punishable u/s.138 of the Negotiable Instruments Act and imposed punishment of six months SI and to pay fine of Rs.5,000/- and in default, to undergo one month SI.
3. Being aggrieved by and dissatisfied with the impugned judgement and order of conviction and sentence dated 18/07/2002 passed by learned Chief Judicial Magistrate, Nadiad in Criminal Case No.1190 of 1990 convicting the petitioner herein – original accused for the offence punishable u/s.138 of the Negotiable Instruments Act, the petitioner herein – original accused preferred Criminal Appeal No.44 of 2002 before learned Sessions Court, Kheda at Nadiad and learned Appellate Court by impugned judgement and order has dismissed the said Appeal confirming the judgement and order of conviction and sentence passed by learned Chief Judicial Magistrate, Nadiad.
Being aggrieved by and dissatisfied with the impugned judgement and orders passed by both the Courts below, the petitioner herein – original accused has preferred the present Criminal Revision Application u/s.397 read with 401 of the Code of Criminal Procedure.
4. Mr.N.K.Majmudar, learned advocate appearing on behalf of the petitioner herein – original accused has vehemently submitted that learned Chief Judicial Magistrate has materially erred in holding the petitioner guilty for the offence punishable u/s.138 of the Negotiable Instruments Act for dishonour of two cheques. It is submitted that as such there was no debt and/or liability at the time when the aforesaid two cheques were issued and deposited by the complainant and, therefore, when there was no legal debt and/or liability with respect to cheques, both the Courts below have materially erred in holding the petitioner guilty for the offence punishable u/s.138 of the Negotiable Instruments Act.
Learned advocate appearing on behalf of the petitioner herein has heavily relied upon the contents in the sale deed by submitting that in the sale deed, it was specifically mentioned that the complainant received sale consideration by Cash and, therefore, it is to be considered as his admission and, therefore, there was no legal debt and/or liability with respect to cheques. It is submitted that therefore learned Chief Judicial Magistrate has materially erred in convicting the petitioner herein for the offence punishable u/s.138 of the Negotiable Instruments Act and learned Appellate Court has materially erred in confirming the same.
By making above submissions, it is requested to allow the present application and to quash and set aside the judgement and order of conviction and sentence passed by learned Trial Court and confirmed by learned Appellate Court. No other submissions have been made.
5. The present application is opposed by Mr.H.M.Parikh, learned advocate appearing on behalf of the original complainant. It is submitted that there are concurrent findings of facts given by both the Courts below convicting the petitioner herein for the offence punishable u/s.138 of the Negotiable Instruments Act and the same are on appreciation of evidence. It is further submitted that in view of the fact that the petitioner herein – original accused did not dispute the legal debt and/or liability by him and did not give reply to the statutory notice and even did not dispute the issuance of the cheques and even writing on the stamp paper dated 05/05/1988 and even when all ingredients of section 138 of the Negotiable Instruments Act are satisfied, both the Courts held the petitioner guilty for the offence punishable u/s.138 of the Negotiable Instruments Act, no interference of this Court is warranted in exercise of revisional jurisdiction. Therefore, it is requested to dismiss the present revision application.
6. Heard Mr.Majmudar, learned advocate appearing on behalf of the petitioner herein – original accused and perused, considered and gone through the judgement and orders passed by both the Courts below as well as entire evidence on record as well as record and proceedings of the case received from the learned Trial/ Appellate Court.
7. At the outset, it is required to be noted that the petitioner herein – original accused has been convicted for the offence punishable u/s.138 of the Negotiable Instruments Act with respect to dishonour of two cheques of Rs.15,000/- and Rs.5,000/- respectively. Admittedly, the same were signed and issued by the petitioner herein – original accused. It is required to be noted that the petitioner herein – original accused has not disputed the signature on the cheques and even also not disputed issuance of the said cheques. It is also required to be noted that when the petitioner herein – original accused was served with the statutory notice u/s.138 of the Negotiable Instruments Act with respect to dishonour of aforesaid two cheques, he has not replied to the same. Thus, at the relevant time, the petitioner did not dispute the liability under the cheques in question. On the other hand, it is the case on behalf of the petitioner herein that at the time of execution of the sale deed in favour of the accused, accused gave two cheques of Rs.15,000/- and Rs.5,000/- towards sale consideration and separate writing was also executed by the accused on the stamp paper giving full particulars of the cheques and submitting that the said cheques were issued towards sale consideration and, therefore, the complainant executed sale deed. It is also required to be noted at this stage that even the petitioner has not disputed and denied the execution of writing dated 05/05/1988 which was on the very date when the complainant executed sale deed in his favour. Only one submission is made on behalf of the petitioner herein – original accused, that in the sale deed, it is mentioned that an amount of Rs.20,000/- is paid by Cash, there is no legal debt and/or liability towards sale consideration. It is the case on behalf of the petitioner herein – original accused that whatever stated in the sale deed, which is signed by the complainant is to be considered as his admission. The aforesaid cannot be accepted. The petitioner herein has failed to prove any payment by Cash at the time of execution of the sale deed by the complainant in his favour. On the contrary, the complainant has proved the execution of the writing dated 05/05/1988 and issuance of two cheques, which are dishonourned and as stated hereinabove, the accused has neither disputed writing dated 05/05/1988 nor has disputed signature on the two cheques.
Considering the aforesaid facts and circumstances of the case, when two cheques, which were issued by the accused are returned and dishonoured and despite statutory notice neither there was any reply to the statutory notice nor the amount under the cheques have been paid and considering the above, when the petitioner has been convicted by learned Chief Judicial Magistrate for the offence punishable u/s.138 of the Negotiable Instruments Act and the same is confirmed by learned Appellate Court, it cannot be said that both Courts below have committed any error and/or illegality in convicting the petitioner herein and imposing sentence.
8. In view of the above and for the reasons stated hereinabove, the present application fails and the same deserves to be dismissed and is accordingly dismissed. Bail granted earlier stands cancelled and bail bond executed earlier stands cancelled. Now, the petitioner to surrender to undergo sentence imposed by learned Trial Court and confirmed by learned Appellate Court, which is further confirmed by this Court by the present order. Rule is discharged.
[M.R.SHAH,J] *dipti