1.0 As common question of law and facts arise in this group of Criminal Revision Applications and are between the same parties but with respect to the different cheques, all these applications are heard, decided and disposed of together by this common order.
2.0 Criminal Revision Application No. 445 of 2010 has been preferred by the applicant original accused to quash and set aside the impugned judgment and order passed by the learned JMFC, Savli dated 9.4.2008 passed in Criminal Case No. 602 of 1997 convicting the applicant for the offence under Section 138 of the Negotiable Instruments Act as well as impugned judgment and order passed by the learned Appellate Court learned Additional Sessions Judge, Vadodara passed in Criminal Appeal No.67 of 2008, by which, the learned Appellate Court has dismissed the said appeal preferred by the petitioner hereinoriginal accused confirming the judgment and order passed by the learned trial Court convicting the petitioner hereinoriginal accused for the offence under Section 138 of the Negotiable Instruments Act.
2.1. Criminal Revision Application No. 446 of 2010 has been preferred by the applicant original accused to quash and set aside the impugned judgment and order passed by the learned JMFC, Savli dated 9.4.2008 passed in Criminal Case No. 604 of 1997 convicting the applicant for the offence under Section 138 of the Negotiable Instruments Act as well as impugned judgment and order passed by the learned Appellate Court learned Additional Sessions Judge, Vadodara passed in Criminal Appeal No.68 of 2008, by which, the learned Appellate Court has dismissed the said appeal preferred by the petitioner hereinoriginal accused confirming the judgment and order passed by the learned trial Court convicting the petitioner hereinoriginal accused for the offence under Section 138 of the Negotiable Instruments Act.
2.2. Criminal Revision Application No. 447 of 2010 has been preferred by the applicant original accused to quash and set aside the impugned judgment and order passed by the learned JMFC, Savli dated 9.4.2008 passed in Criminal Case No. 605 of 1997 convicting the applicant for the offence under Section 138 of the Negotiable Instruments Act as well as impugned judgment and order passed by the learned Appellate Court learned Additional Sessions Judge, Vadodara passed in Criminal Appeal No.69 of 2008, by which, the learned Appellate Court has dismissed the said appeal preferred by the petitioner hereinoriginal accused confirming the judgment and order passed by the learned trial Court convicting the petitioner hereinoriginal accused for the offence under Section 138 of the Negotiable Instruments Act.
3.0 That the respondent no.2 herein in respective Criminal Revision Applications original complainant instituted Criminal Case Nos. 602 of 1997, 604 of 1997 and 605 of 1997 against the petitioner herein in the Court of learned JMFC, Savli for the offence under Section 138 of the Negotiable Instruments Act alleging inter alia that complainant sold the Tobacco goods to the original accused for which the accused gave three different cheques and when the same came to be deposited in the Bank, the same came to be dishonoured with an endorsement “insufficient fund”. It was further submitted that thereafter accused was served with the statutory notice as required under Section 138 of the Negotiable Instruments Act and despite the same were served the accused did not pay the cheque amount and therefore, it was requested to convict the petitioner original accused for the offence under Section 138 of the N.I. Act.
3.1. The aforesaid criminal cases were opposed by the petitioner herein original accused and it was the case on behalf of the accused that in fact the cheques which were given to the complainant as security are misused.
3.2. That on appreciation of evidence the learned trial Court held the petitioner guilty for the offence under Section 138 of the N.I. Act, in all the aforesaid criminal cases by holding that the cheques were given by the accused towards goods of Tobacco sold to the accused and that the accused has failed to prove any payment made towards goods supplied. Consequently the learned trial Court convicted the petitioner original accused for the offence under Section 138 of the N.I. Act and sentenced to undergo one year S.I with fine of Rs.500/and in default to undergo 15 days S.I in each of the criminal cases. The learned trial Court also ordered to pay compensation of Rs. 25,000/.
3.3. Feeling aggrieved and dissatisfied with the judgment and order passed by the learned JMFC, Savli passed in Criminal Case Nos. 602 of 1997, 604 of 1997 and 605 of 1997 in convicting the applicant for the offence under Section 138 of the N.I. Act and to undergo the sentence as stated above, the petitioner herein original accused preferred Criminal Appeal Nos. 67 to 69 of 2008 before the learned Appellate Court and the learned Appellate Court by impugned judgment and order has dismissed the aforesaid Criminal Appeals by confirming the judgment and order passed by the learned trial Court convicting the petitioner for the offence under Section 138 of the N.I. Act and to undergo sentence as stated above.
3.4. Feeling aggrieved and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned trial Court confirmed by the learned Appellate Court, the petitioner hereinoriginal accused has preferred present Criminal Revision Applications under Section 397 r/w 401 of the Code of Criminal Procedure.
4.0 Shri Panthil Majmudar, learned advocate for applicant original accused has submitted that both the Courts below have materially erred in not properly appreciating the defence of the petitioner that the cheques were given as security and the same were misused by the complainant. No other submissions have been made. By making above submissions, it is requested to allow the present Criminal Revision Applications.
5.0 All these applications are opposed by Shri Prabhakar Upadhyay, learned advocate for the original complainant. It is submitted that as such there are concurrent findings of fact given by both the Courts below holding the petitioner guilty for the offence under Section 138 of the N.I. Act and holding that the cheques were given by the accused towards legal debt due and payable to the complainant towards Tobacco goods sold to him. It is submitted that finding of fact given by both the Courts below are on appreciation of evidence which are not required to be interfered with by this Court in exercise of revisional jurisdiction. It is further submitted by Shri Prabhakar Upadhyay, learned advocate for the respondentoriginal complainant that even though there is no stay against the impugned judgment and order of conviction and sentence passed by both the Courts below, applicant has still not surrendered and has absconded. Therefore, it is requested not to exercise discretionary jurisdiction while exercising revisional jurisdiction in favour of the applicant who has absconded.
6.0 Ms. Shah, learned APP for the State has supported the respondent no.2 hereinoriginal complainant.
7.0 Heard the learned advocates for the respective parties at length and considered the impugned judgment and order passed by both the Courts below convicting the applicant hereinoriginal accused for the offence under Section 138 of the N.I. Act and also considered the defence of the applicant hereinoriginal accused.
8.0 At the outset, it is required to be noted that as such there are concurrent finding of facts given by both the Courts below that the cheques were given by the applicantaccused to the original complainant towards legal debt for Tobacco goods sold to the accused and that the cheques have been dishonoured with an endorsement “insufficient fund”. Both the Courts below have also considered the fact that the accused has failed to establish and prove by leading evidence that in fact any amount is paid to the original complaint for the goods/ Tobacco sold to him. Both the Courts below have also considered the defence on behalf of the applicant that cheques were given for security purpose and the same have been misused (as alleged by the accused). However on appreciation of evidence both the Courts below have disbelieved the case on behalf of the accused.
9.0 Considering the fact that cheques have been issued by the accused which has not been disputed by the accused and the said cheques are dishonoured by the Bank with an endorsement “insufficient fund” and it has been found that the cheques have been issued for legal debt and when it has been found that despite the statutory notice served under Section 138 of the N.I. Act accused has not returned the amount under the cheques in question which are returned unpaid and considering the above when the learned trial Court convicted the applicant in each of the criminal cases for the offence under Section 138 of the N.I. Act and has sentenced the applicant to undergo one year S.I with fine of Rs.500/and in default to undergo 15 days S.I in each of the criminal cases and when the same have been confirmed by the learned Appellate Court, it cannot be said that both the Courts below have committed any error and / or illegality. The learned advocate for the applicant has failed to satisfy the Court how the finding given by both the Courts below are perverse and / or contrary to the evidence on record. Under the circumstances, no interference of this Court in exercise of revisional jurisdiction is called for.
10. It is also required to be noted at this stage that though the impugned judgment and order passed by the learned Appellate Court is dated 4.6.2010 and there is no stay and / or any protection in favour of the applicant, still the applicant has not surrendered and he has absconded. Shri Panthil Majmudar, learned advocate for the applicant has stated at the bar that he has also informed the petitioner to surrender however still the petitioner has not surrendered. Under the circumstances, also this Court would not like to exercise revisional jurisdiction in favour of the applicant who has absconded.
11. In view of the above and for the reasons stated above, all the Criminal Revision Applications deserves to be dismissed and are accordingly dismissed. Notice discharged in each of the Criminal Revision Applications.
“kaushik”
sd/ ( M. R. Shah, J. )