[1.0] As common question of law and facts arise in both these Criminal Revision Applications and are between the same parties but with respect to different cheques both these applications are heard, decided and disposed of together by this common order. [2.0] Criminal Revision Application No.138 of 2011 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 to quash and set aside the impugned judgment and order of conviction and sentence dated 31.03.2009 passed by the learned JMFC, Surat in Criminal Case No.64 of 2005 by which the learned trial Court has convicted the applicant herein – original accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “NI Act”) and sentence to undergo six months' SI and to pay Rs.2,30,000/ towards compensation as well as the impugned judgment and order dated 11.03.2011 passed by the learned Appellate Court – learned 3rd Additional District & Sessions Judge, Surat in Criminal Appeal No.31 of 2010 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and order of conviction and sentence passed by the learned trial Court.
[2.1] Criminal Revision Application No.139 of 2011 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 to quash and set aside the impugned judgment and order of conviction and sentence dated 31.03.2009 passed by the learned JMFC, Surat in Criminal Case No.63 of 2005 by which the learned trial Court has convicted the applicant herein – original accused for the offence under Section 138 of the NI Act and sentence to undergo six months' SI and to pay Rs.2,30,000/ towards compensation as well as the impugned judgment and order dated 11.03.2011 passed by the learned Appellate Court – learned 3rd Additional District & Sessions Judge, Surat in Criminal Appeal No.32 of 2009 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and order of conviction and sentence passed by the learned trial Court.
[3.0] That the respondent No.2 herein – original complainant instituted the aforesaid two complaints against the applicant under Section 138 of the NI Act for dishonour of two cheques one for an amount of Rs.2,30,000/ and another for an amount of Rs.2,90,000/. It was the case on behalf of the complainant that the aforesaid two cheques were given by the applicant towards the cheque discount and at the time when the said cheques were given after deducting the discount, the cheque amount was paid to the accused by cash. That thereafter when the aforesaid cheques were deposited, the same came to be returned with an endorsement “funds insufficient”. It was the case on behalf of the complainant that thereafter the accused was served with the statutory notices as required under Section 138 of the NI Act and despite the same, the cheque amounts were not paid and therefore, it was requested to convict the accused for the offence under Section 138 of the NI Act. That having served with the summonses, the accused appeared before the learned trial Court, pleaded not guilty and therefore, she came to be tried. On behalf of the complainant, complainant himself came to be examined at Exh.10. The Branch Manager of Bank of Baroda came to be examined at Exh.29. The statement of the accused was recorded under Section 313 of the CrPC and it was the case on behalf of the accused that the cheques have been misused. On appreciation of evidence and considering the fact that in reply to the notice the accused admitted issuance of the cheques, however, it was the case on behalf of the accused that the cheque amount has been paid, which could not be proved by the accused and as all the ingredients of Section 138 of the NI Act were satisfied, the learned trial Court by judgment and order dated 31.03.2009 has convicted the applicant – original accused in criminal cases for the offences under Section 138 of the NI Act and sentenced to undergo six months' SI with compensation of Rs.2,30,000/ and Rs.2,90,000/ respectively.
[3.1] Feeling aggrieved and dissatisfied with the judgment and order of conviction and acquittal passed by the learned trial Court in Criminal Case Nos.64 of 2005 and 63 of 2005, the applicant herein – original accused preferred Criminal Appeal Nos.31 of 2010 and 32 of 2009 before the learned Appellate Court and the learned Appellate Court by impugned judgment and order has dismissed the said appeals. Hence, the applicant has preferred the present Criminal Revision Applications under Section 397 read with Section 401 of the CrPC.
[3.2] Shri Samirkhan Pathan, learned advocate appearing on behalf of the applicant – original accused has stated at the Bar that as such since long the applicant has not contacted him and he has not received any instruction from the applicant to proceed with the matter. It is submitted that he has send several letters to the applicant, however, she is not traceable.
[3.3] Shri Pathan, learned advocate appearing on behalf of the applicant has, therefore, submitted the case on merits on the basis of the material on record. He has submitted that both the Courts below have materially erred in not considering the defence of the applicant submitted in the reply to the statutory notice as well as submitted by making statement under Section 313 of the CrPC. It is submitted that as such the complainant has misused the cheques which were given to him. It is submitted that as such the complainant has failed to prove the debt by producing the books of account or any evidence to prove that infact the cheque amount was paid by cash to the applicant. It is submitted that both the Courts below have committed the serious error of law in drawing presumption against the present applicant under Section 138 of the NI Act. Making above submissions, it is requested to allow the present Criminal Revision Applications. No other submissions have been made.
[4.0] All these revision applications are opposed by Ms. Kruti Shah, learned advocate appearing on behalf of the original complainant. It is submitted that as such there are two contradictory stands taken by the applicant. One in reply to the statutory notice and another while giving Further Statement under Section 313 of the CrPC. It is submitted that in reply to the statutory notice the applicant – accused came out with a case that she has made the payment of entire cheque amount which could not have been proved by her and in the further statement under Section 313 of the CrPC, the applicant for the first time came out with a case that the cheques have been misused by the complainant. It is submitted that in view of the aforesaid contradictory stand and when on appreciation of evidence the learned trial Court has held that the applicant has failed to prove any payment made towards the cheque amount and when all the ingredients of Section 138 of the NI Act are satisfied and consequently when the learned trial Court has convicted the applicant for offence under Section 138 of the NI Act which has been confirmed by the learned Appellate Court, it is requested to dismiss the present Criminal Revision Applications. It is further submitted by Ms. Shah, learned advocate appearing on behalf of the original complainant that as such the applicant is convicted in many other cases for the offence under Section 138 of the NI Act and since long she has absconded and her whereabouts are even not known to the learned advocate appearing on behalf of the applicant. Therefore, it is requested to dismiss the present Criminal Revision Applications.
[5.0] Heard learned advocates appearing on behalf of respective parties at length and considered the impugned judgment and orders passed by both the Courts below as well as evidence, documentary as well as oral, from the Record and Proceedings available from the learned trial Court. At the outset it is required to be noted that 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 the same are appreciation of evidence which are not required to be interfered with by this Court in exercise of powers of revisional jurisdiction.
[5.1] Even otherwise on considering the impugned orders passed by both the Courts below and the evidence on record it appears that no illegality has been committed by the learned trial Court in convicting the applicant for the offence under Section 138 of the NI Act. It appears that in reply to the statutory notice the applicant admitted issuance of the cheques. However, it was the case on behalf of the applicant – accused that she has made the payment of cheque amount. However, the applicant could not prove the payment of cheque amount to the complainant. It is also required to be noted that at the time of recording of further statement under Section 313 of the CrPC, the applicant came out with altogether a new case that the cheques were misused by the complainant, which was not even the case on behalf of the applicant in reply to statutory notice. It appears to the Court that as such all the ingredients of Section 138 of the NI Act are satisfied, meaning thereby the cheques have been issued by the accused towards the debt which was paid to the accused which have been returned with an endorsement “funds insufficient” and despite the statutory notices, the same have not been repaid and consequently when the learned trial Court has convicted the applicant for the offence under Section 138 of the NI Act and when the same has been confirmed by the learned Appellate Court the same do not require any interference of this Court in exercise of revisional jurisdiction.
[5.2] As observed herein above, even the applicant is not traceable even by the learned advocate appearing on behalf of the applicant and it is also reported that applicant is convicted in other cases for the offence under Section 138 of the NI Act which have been confirmed upto this Court and she has not even surrendered to undergo sentence which have been confirmed by this Court and has absconded.
[6.0] In view of the above and for the reasons stated above, both the Criminal Revision Applications are dismissed. Rule is discharged in each of the applications. Adinterim relief granted earlier stands vacated forthwith. Interim relief/bail granted earlier stands cancelled.
(M.R. Shah, J.) menon