[1.0] Present Criminal Revision Application under Section 397 d with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “CrPC”) has been preferred by the applicant – original accused to quash and set aside the impugned judgment and order dated 13.02.2012 passed in Criminal Case No.893 of 2008 by which the learned Magistrate has convicted the applicant – original accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) and has directed the applicant to undergo sentence of one year SI with fine of Rs.5,000/ and in default to undergo a further three months' SI as well as the impugned judgment and order dated 04.08.2012 passed by the learned Additional City Sessions Judge, Court No.16, Ahmedabad in Criminal Appeal No.62 of 2012 by which the learned Appellate Court has dismissed the said appeal preferred by the applicant confirming the judgment and order of conviction and sentence passed by the learned Magistrate convicting the applicant for the offence under Section 138 of the NI Act. [2.0] Respondent No.2 herein – original complainant filed a Criminal Complaint against the applicant herein – original accused in the Court of learned Metropolitan Magistrate, Ahmedabad being Criminal Case No.893 of 2008 for the offence under Section 138 of the NI Act for dishonor of cheque No.005726 dated 07.09.2008 of Rs.80,000/ drawn on Ahmedabad District Cooperative Bank Ltd., Rakhial Branch, Ahmedabad issued by the applicant herein – original accused. It was the case on behalf of the original complainant that both of them had relations and were neighbours and as accused wanted to purchase the machinery for printing press and therefore, he was in need of the money and therefore, he asked the complainant to help him financially and therefore, the complainant gave Rs.80,000/ to him. It was further alleged that at the relevant time it was promised that the said amount shall be returned within short time. It was further alleged in the complaint that thereafter the accused did not repay the amount and was giving false promises and thereafter, gave the aforesaid cheque which came to be deposited by the complainant with their Bank and the same came to be returned on 10.09.2008 with an endorsement “today's opening balance insufficient”. It was the case on behalf of the complainant that thereafter he issued a statutory notice upon the accused through their advocate by RPAD as well as UPC and both the notices came to be served upon the accused and despite the fact that both the notices were served upon the accused, the accused neither replied to the same nor made the payment as per the notice and therefore, it was requested to convict the accused for the offence under Section 138 of the NI Act. That thereafter the learned Magistrate issued the summons against the accused for the offence under Section 138 of the NI Act. On being served with the summons, the accused appeared before the learned Magistrate and his plea was recorded at Exh.4, however, the accused pleaded not guilty and therefore, he came to be tried by the learned Metropolitan Magistrate.
[2.1] To prove the case against the accused the complainant examined himself as well as examined one Dhananjay Kanaiyalal Desai. Both of them came to be crossexamined thoroughly. The complainant also produced documentary evidences. That thereafter the evidence of the complainant came to be closed vide pursis Exh.17A. Thereafter, further statement of the accused came to be recorded, he denied all the allegations against him and he made a statement that he shall produce the affidavit. He himself came to be examined at Exh.20 and he produced the documentary evidences at Exhs.23 and 24. He submitted the closing pursis at Exh.25. It appears that initially in the deposition the accused even denied that any statutory notice was served upon him. However, when he was shown the acknowledgment RPAD slip to show that notice was served and was accepted by one Girish Kanada, he stated that he does not who Shri Girish Kanada is. However, in the crossexamination he was compelled to admit that he knows said Girish Kanada as he is his nephew (son of his elder brother Arvindbhai) and he also was compelled to admit that he had shown the statutory notice to him.
[2.2] That thereafter after the stage of recording the evidence was closed, the learned Magistrate heard the learned advocates appearing for respective parties and also considered the written arguments. That on appreciation of evidence, the learned Magistrate held the applicant guilty for the offence under Section 138 of the NI Act for dishonor of the aforesaid cheque and consequently applicant for the aforesaid offence and imposed the sentence of one year SI with fine of Rs.5,000/ and in default to undergo three months' SI.
[2.3] Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence dated 13.02.2012 passed by the learned Metropolitan Magistrate (NI Act), Court No.8, Ahmedabad in Criminal Case No.893 of 2008 convicting the applicant for the offence under Section 138 of the NI Act, the applicant herein – original accused preferred Criminal Appeal No.62 of 2012 and the learned Appellate Court by impugned judgment and order has dismissed the said Appeal confirming the judgment and order of conviction and sentence passed by the learned Metropolitan Magistrate.
[2.4] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below, the applicant herein – original accused has preferred the present Criminal Revision Application under Section 397 read with Section 401 of the CrPC.
[3.0] Shri Sakaria, learned advocate appearing on behalf of the applicant has vehemently submitted that both the Courts below have materially erred in convicting the applicant for the offence under Section 138 of the NI Act for dishonor of the cheque in question. It is submitted that as such the original complainant failed to prove that there was any legally enforceable debt for which the cheque was issued and therefore, as the complainant failed to prove any legally enforceable debt, the learned Magistrate ought not to have convicted the applicant for the offence under Section 138 of the NI Act.
[3.1] It is submitted that even the complainant did not produce any books of account and/or any documentary evidence showing from where he got Rs.80,000/, which was alleged to have been given to the accused in cash and therefore, in absence of such evidence and in absence of any legally enforceable debt, the learned Magistrate ought not to have convicted the applicant for the offence punishable under Section 138 of the NI Act. In support of his above submissions, Shri Sakaria, learned advocate appearing on behalf of the applicant has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat v. Dattatraya G. Hegde reported in 2008 AIR SCW 738; decision of the learned Single Judge of this Court in the case of Usmangani Yusufbhai Rangpariya v. Kishore B. Pawar reported in 2010 Cri.L.R. (Guj.) 1 as well as the decision of the Bombay High Court in the case of Sayeeda Iqbal Vakil v. Javed Abdul Latif Shaikh & Anr. reported in IV (2009) BC 17.
[3.2] It is further submitted by Shri Sakaria, learned advocate appearing on behalf of the applicant that as such the cheque book from which the cheques were alleged to have been issued was of the year 1998 and the transaction was also of the year 1998 – 99 and not of the year 2008. Therefore, it is submitted that as such there was no legally enforceable debt in the year 2008. It is further submitted that as such Rs.20,000/ was paid by the complainant and not Rs.80,000/ as alleged and even the said amount of Rs.20,000/ was repaid to the complainant. Therefore, as the complainant has failed to prove any legally enforceable debt and infact payment of Rs.80,000/ to the accused as alleged, it is requested to admit/allow the present Criminal Revision Application and to suspend the sentence and release him on bail.
[4.0] Heard Shri Sakaria, learned advocate appearing on behalf of the applicant – original accused at length and Ms. C.M. Shah, learned APP appearing on behalf of the State and perused and gone through the entire judgment and order passed by both the Courts below as well as the entire evidence, documentary as well as oral, from the R & P received from the learned trial Court.
[4.1] At the outset it is required to be noted that as such there are concurrent findings of fact given by both the Courts below holding the applicant guilty for the offence under Section 138 of the NI Act and consequently convicting the applicant accused for the aforesaid offence. Considering the entire evidence on record, it appears to the Court that the concurrent findings of fact given by both the Courts below are on appreciation of evidence and they are neither perverse nor contrary to the evidence on record.
[4.2] So far as the contention on behalf of the applicant that there was no legally enforceable debt in the year 2008 and the cheque book was of the year 1998 and that the complainant has failed to prove any payment of Rs.80,000/ to the accused and/or that there was no legally enforceable debt is concerned, it is required to be noted that as such it is an admitted position that there were financial transactions between the accused and the complainant. However, it was the case on behalf of the accused that he received only Rs.20,000/ and not Rs.80,000/ as alleged and even the said amount of Rs.20,000/ was repaid by him. However, the accused has failed to prove that even the aforesaid amount of Rs.20,000/ which according to him he received from the complainant, was repaid by him. Therefore, even repayment of Rs.20,000/ is not proved. Thus, as stated above, there were financial transactions between the applicant and the original complainant. At this stage it is required to be noted that after the cheque dated 07.09.2008 of Rs.80,000/ was returned with an endorsement “funds insufficient”, the complainant served a statutory notice upon the accused by RPAD as well as UPC and the said notice came to be served upon the applicant and it is an admitted position that the accused has not replied to the said statutory notice denying the allegations made in the statutory notice with respect to payment of Rs.80,000/ to the accused and issuance of the cheque. Thus, at the first instance and/or opportunity, the accused neither disputed the issuance of cheque of Rs.80,000/ nor disputed the liability of Rs.80,000/ nor disputed payment of Rs.80,000/ to him by the complainant as alleged in the notice and even not disputed the signature on the cheque. Even during the evidence also, the accused has not disputed the issuance of the cheque by him and/or his signature on the cheque. His only contention during the trial was that the complainant has not proved the payment of Rs.80,000/ to the accused as alleged to have been paid by cash for which the cheque has been issued. However, considering Sections 139 and 118 of the NI Act, once the cheque has been issued and issuance of the cheque has not been disputed by the accused, there is a statutory presumption that the cheque has been issued for legally enforceable debt, however, such a presumption is rebuttable. Therefore, once the issuance of the cheque with signature has been proved, thereafter it is for the accused to rebut the same by leading the evidence and only thereafter again the burden will be shifted upon the complainant. It is not that initially and despite the statutory presumption the complainant has to prove the payment and/or the legally enforceable debt. As stated herein above, it is an admitted position that there were financial transaction between the accused and the complainant. Even the accused has admitted that he has received Rs.20,000/ from the complainant and according to him it was repaid by him. However, as stated above, the applicant has failed to prove repayment of even Rs.20,000/. Under the circumstances and considering the aforesaid facts and circumstances, when financial transactions are admitted by the accused, and he is not disputing the issuance of cheque and he is not even disputing his signature on the cheque which has been dishonored and when he was served the statutory notice under Section 138 of the NI Act, he has not disputed the debt and when the cheque has been dishonored with an endorsement “funds insufficient”, it cannot be said that the learned Magistrate has committed any error and/or illegality in convicting the applicant for the offence under Section 138 of the NI Act.
[4.3] At this stage even the conduct on the part of the applicant – accused is also required to be considered. In his examinationinchief, it was the case on behalf of the accused that he has not even received the statutory notice. However, when he was confronted with the acknowledgment RPAD slip having signature of one Shri Girish Kanada, he specifically stated that he does not know who this Girish Kanada is. However, in the cross examination, he was compelled to admit that the said Girish Kanada is his nephew (son of his elder brother Arvindbhai) and he also admitted that he was shown the notice by the said Shri Girish Kanada. Therefore, all sorts of dishonest and incorrect defences have been taken by the accused.
[4.4] Now, so far as the case on behalf of the accused that the cheque book was of the year 1998 and the transaction was also of the year 199899 and not of the year 2008 is concerned, it is required to be noted that the complainant has examined the bank officer and he has specifically denied that the cheque was of the year 199899. Even otherwise and in any case and as stated herein above, the applicant accused has not disputed issuance of the said cheque and even his signature on the cheque.
[4.5] Now, so far as the decisions of the Hon'ble Supreme Court in the case of Krishna Janardhan Bhat (Supra) and the decision of the learned Single Judge of this Court in the case of Usmangani Yusufbhai Rangpariya (Supra) and the decision of the Bombay High Court in the case of Sayeeda Iqbal Vakil (Supra), relied upon by the learned advocate appearing on behalf of the applicant, on considering the same it appears to the Court that none of the aforesaid decisions would be of any assistance to the applicant in the facts and circumstances of the case. All the aforesaid decisions are on the facts and circumstances of each case.
[4.6] In view of the above and for the reasons stated above, as such no illegality has been committed by the learned Magistrate in convicting the applicant for the offence under Section 138 of the NI Act and the same is rightly confirmed by the learned Appellate Court. The findings of fact given by both the Courts below and convicting the applicant for the offence under Section 138 of the NI Act are on appreciation of evidence and they are neither perverse nor contrary to the evidence on record and therefore, the same are not required to be interfered by this Court in exercise of the revisional jurisdiction.
[5.0] In view of the above and for the reasons stated above, there is no substance in the present Criminal Revision Application and the same deserves to be dismissed and is, accordingly, dismissed. No costs.
(M.R. Shah, J.) menon