[1.0] As common question of law and facts arise in these Revision Applications and as such by the same accused, all these Revision Applications are heard, decided and disposed of by this common judgment and order. [2.0] Criminal Revision Application No.486 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.2398 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 five months' SI with fine of Rs.1,500/ and with compensation of Rs.5,00,000/ 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.57 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.487 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.2399 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.5,00,000/ 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.58 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.489 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 10.08.2006 passed by the learned Metropolitan Magistrate, Ahmedabad in Criminal Case No.2401 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 three months' SI with fine of Rs.500/ 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.75 of 2006 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 – original accused 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 “not arranged for”. 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 person. It was 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 cheque 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 the original complainant Nitinbhai Maneklal Patel came to be examined and one Babubhai Dahyabhai Jaiswal came to be examined, documentary evidences came to be produced to prove the statutory notices and the debt. After the evidence was closed, Further Statement under Section 313 of the CrPC came to be recorded. Not only that but the accused herself came to be examined on oath at Exh.29. It was the case on behalf of the accused that her husband was doing the business in the name of Krishna Investment 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 and 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 five months' SI with fine of Rs.1,500/ 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 vehemently submitted that the learned Metropolitan Magistrate has materially erred in convicting the applicant for the offence under Section 138 of the NI Act. It is submitted that as such the complainant has not proved the legal debt and liability for the amount mentioned in the cheque and/or there was any legal debt or liability at the time when the cheques were issued and therefore, the learned Magistrate has committed an error and illegality in convicting the applicant and even the Appellate Court has also erred in confirming the said judgment and order.
[4.1] Now, so far as the Criminal Revision Application No.487 of 2009 is concerned, it is submitted by Shri Majmudar, learned advocate appearing on behalf of the applicant that on behalf of the complainant one Nitinkumar Maneklal Patel as Karta of HUF is examined, which is not permissible.
[4.2] 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.
[4.3] 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 cheque 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 cheque nor disputed the signatures on the cheques nor even has disputed that the cheque amount has been initially paid and 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 has 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] 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 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.
[6.3] Now, so far as the proposal on behalf of the applicant – accused that she is ready and willing to pay 25% of the respective cheque 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 cheque 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.
[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. Bail bond stands cancelled.
(M.R. Shah, J.) Menon