Lalit Giri vs Raghunath Nenawat

None for the applicant.

On 06.01.2017, 22.02.2017, 21.03.2017, 10.04.2017, 21.06.2017, 14.07.2017 and 27.10.2017 none had appeared for the applicant.

This criminal revision under Sections 397 and 401 of the Code of Criminal Procedure, 1973 has been filed against the judgment dated 09.03.2016

passed in Criminal Appeal No.12/2016 by which the learned ASJ has partly allowed the appeal and the order passed by the learned JFMC in Criminal

Case No.14658/2008 was partly modified. The applicant has been convicted under Section 138 of Negotiable Instruments Act and the sentence of

Rigorous Imprisonment of six months awarded by the trial Magistrate was set-aside and it was directed that the applicant shall deposit the

compensation amount of Rs.1,50,000/- within a period of one month from the date of judgment of appellate Court along with the interest of 9% per

annum payable from the date of registration of complaint. It was further directed that in case of default of payment of compensation amount then the

applicant shall undergo the default sentence of Simple Imprisonment of six months.

Initially, this Court vide order dated 29.04.2016 had stayed the operation of judgment passed by the appellate Court and when the Counsel for the

applicant did not appear before this Court then this Court by order dated 10.04.2017 has vacated the stay order dated 29.04.2016. Thus, it is clear that

either the applicant must have deposited the compensation amount or must have undergone the default imprisonment or the trial Court must have

issued the warrant of arrest. In any situation, it appears that the applicant has lost his interest in prosecuting this revision. Accordingly, this revision is

considered on merits in the light of judgment passed by Supreme Court in case of Suryabaksh Singh vs State of UP reported in (2014) 14 SCC 222.

The necessary facts for the disposal of this present revision in short are that the respondent No.1 had filed the complaint under Section 138 of

Negotiable Instruments Act, 1881 (hereinafter referred to as the Act of 1881) against the applicant on the allegation that he is carrying the business of

construction of building on contract basis and accordingly a contract for construction of building on an area of 600 square meters was given to the

applicant and an agreement was also executed in that regard. As per agreement, the building was to be completed and the applicant was under the

obligation to pay Rs.4,25,000/- to the complainant and out of the said amount, an amount of Rs,17,000/- was paid in cash and the remaining amount of

Rs.2,75,000/- was to be paid after obtaining the loan from the Bank. The applicant was under the obligation to pay Rs.2,00,000/- in cash. Accordingly,

the applicant gave two cheques of Rs.75,000/- and Rs.50,000/- each on 30.05.2008 to the complainant with an assurance that the remaining amount

would be given in cash and it was also assured that Rs.79,000/- would be paid in cash. It is further alleged that the cheques issued by the applicant

stood bounced. Accordingly, complaint under Section 138 of Negotiable Instruments Act was registered.

It was the defense of the applicant that he was inclined to develop a colony and accordingly an amount of Rs.17,000/- was paid to the complainant. It

was further pleaded that for the purpose of getting the loan, the applicant had given 4-5 cheques to the complainant, but the said cheques were

misused by the complainant.

The trial Court (ACJM, Indore) after recording the evidence by judgment dated 14.12.2015 passed in criminal case No.14658/2008 came to the

conclusion that the complaint filed under Section 138 of the Act of 1881 was within time and the cheques were issued in discharge of legal liability and

accordingly, the applicant was held guilty for the offence punishable under Section 138 of the Act of 1881. The applicant was sentenced to undergo

Rigorous Imprisonment of six months and compensation of Rs.1,25,000/- was awarded along with the interest of 9% per annum payable from the date

of registration of complaint, with default imprisonment.

Being aggrieved by the judgment and sentence passed by the Court below, the applicant filed the criminal appeal which was registered as Criminal

Appeal No.12/2016. The said appeal was finally decided by the 14th Additional Sessions Judge, Indore by judgment dated 09.03.2016. By maintaining

the conviction of the applicant, the appellate Court interfered with the sentence awarded by the trial Court and set-aside the jail sentence of rigorous

imprisonment of six months by enhancing the compensation amount to Rs.1,50,000/- from Rs.1,25,000/- as awarded by the learned trial Court and it

was directed that the compensation amount be payable within a period of one month from the date of judgment of appellate Court with default

imprisonment or simple imprisonment for six months. The compensation amount was payable along with interest 9% per annum from the date of

registration of complaint.

Challenging the judgment and sentence passed by the Courts below, the applicant has filed the present criminal revision before this Court. In the

memo of revision, it is submitted that the complainant has failed to establish that the cheques in question were issued by the applicant in discharge of

legal liability.

Considering the grounds raised in the memo of revision as well as record of the Courts below, it is clear from the record that the applicant has not

disputed the signatures on the cheques in question. His contention is that all the entries in the cheques were not filled in by the applicant. It is well

established principle of law where the signatures on the cheques were not disputed by the accused/applicant then Section 20 of the Act of 1881 would

apply and the applicant has failed to rebut the presumption as provided under Section 20 of the Act of 1881. Even otherwise, as already mentioned in

the earlier part of the order that on the last six dates, none had appeared on behalf of the applicant. On 10.04.2017, this Court had also vacated the

stay order dated 29.04.2016, thus, it is clear that in view of the changed circumstances, the applicant is not interested in prosecuting the present

criminal revision. Even otherwise, it is well established principle of law that in exercise of powers conferred under Sections 397 and 401 of Criminal

Procedure Code, this Court cannot set-aside the concurrent findings of fact recorded by the Courts below unless and until the same are pointed out to

be perverse.

In the present case, as the applicant has not disputed the signatures on the cheques in question and, on the contrary, it has been admitted by the

applicant that the cheques in question were given to the complainant then in view of the presumption as provided under Section 20 of the Act of 1881,

it can be presumed that the cheques in question were issued in discharge of legal liability as the applicant has not rebutted the presumption, hence, this

Court is of the considered opinion that the respondent has succeeded in establishing the fact beyond reasonable doubt, that the cheques in question

were issued in discharge of legal liability and the same were returned back by the Bank on the ground of “insufficient funds†and inspite of the

notice issued by the respondent to the applicant under Section 138 of the Act of 1881, the cheque amount was not paid to the respondent by the

applicant. Under such circumstances, the applicant is accordingly held guilty of committing offence under Section 138 of the Act of 1881. So far as

the question of sentence is concerned, the appellate Court has set-aside the jail sentence of Rigorous Imprisonment of six months by enhancing the

compensation amount to Rs.1,50,000 from Rs.1,25,000/- as awarded by the trial Court. Accordingly, the sentence awarded by the Courts below does

not call for interference.

Accordingly, the conviction and sentence dated 14.12.2015 passed by the ACJM, Indore in Criminal Case No.14658/2008 and the judgment dated

09.03.2016 passed by the 14th ASJ, Indore in Criminal Appeal No.12/2016 are hereby affirmed.

Accordingly, criminal revision fails and is hereby dismissed.