: 1 : wp-1823-11=.doc USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 1823 OF 2011 Chandrakant Govind Patil .. Petitioner / Applicant v/s. Ajit Vasant Thakur & Anr. .. Respondents ......... Mr. S.G. Rajput for the petitioner Mr. V.B. Kondedeshmukh, APP for State ......... CORAM : R.Y.GANOO, J. DATE : 11th JULY, 2011. P.C. : 1. The applicant was required to face trial under Section 138 of the Negotiable Instrument Act, 1881 in Case No.2956/SS/2007 filed by respondent no.1. The learned Metropolitan Magistrate, 30th Court, Kurla, Mumbai by judgment dated 30th June, 2008 convicted the applicant and imposed punishment of simple imprisonment as well as sentenced the applicant to suffer imprisonment for a period of three months and also ordered the applicant to pay compensation to the tune of Rs.2,50,000/- and ordered that if the compensation amount is not paid, he shall suffer simple imprisonment for one month. Against this order, the applicant filed Criminal Revision Application No.743 of 2008 before the Sessions : 2 : wp-1823-11=.doc Court for Greater Bombay. The learned Additional Sessions Judge by order dated 28th April, 2011 dismissed the said revision application and that is how the applicant has approached this Court under Article 226 of the Constitution of India. 2. I have heard learned Counsel Mr. Rajput extensively. According to the applicant he had borrowed a sum of Rs.1,30,000/- from the respondent no.1 on 2nd February, 2001. He has also advanced his defence that the said amount was repaid in cash on 10th March, 2001 and he had delivered to respondent no.1 a blank cheque as and by way of security. According to the applicant at the time when the transaction had taken place, he had given a blank cheque to respondent no.1 as and by way of security. 3. At the stage of the trial, the applicant has come out with the defence that a sum of Rs.1,30,000/- was paid in cash and no receipt was obtained from respondent no.1 and cheque for Rs.2,50,000/- was given as and by way of security. The learned Metropolitan Magistrate as well as learned Additional Sessions Judge rejected the defence of the present applicant and accepted the stand of the complainant. I had with the assistance of learned Counsel Mr. Rajput perused the entire record. The stand of the applicant that a sum of Rs.1,30,000/- was paid : 3 : wp-1823-11=.doc in cash is not reflected in the record. The applicant has in his examination-in-chief admitted that he had forgotten to collect the impugned cheque, which was given to the respondent no.1 as and by way of security. The date of return of the sum of Rs.1,30,000/- is also not specifically stated in the examination-in-chief. The applicant examined one Mr. Siraj, PW-2 in support of the stand of the applicant that a sum of Rs.1,30,000/- was repaid to respondent no.1 on 10th March, 2001. The evidence of Mr. Siraj, PW-2 is required to be rejected on the ground that he has been put up as got up witness because the applicant himself has not stated in his evidence and in particular examination-in-chief when the sum of Rs.1,30,000/- is paid. 4. The conduct on the part of the applicant in not collecting the cheque, which according to him has given as and by way of security after the alleged repayment of Rs.1,30,000/- is clearly indicative of the fact that the defence of the applicant that the impugned cheque was given as and by way of security, cannot be accepted. In the normal course, if the applicant had returned the amount, at the very time itself he should have demanded the cheque or if the same is not given forthwith, he could have demanded subsequently. Before this Court, learned Counsel Mr. Rajput submitted that if the case of complainant is accepted, it will mean that the cheque is delivered for payment of time : 4 : wp-1823-11=.doc barred debt, therefore, the case of the complainant should not be believed. The applicant has not been able to make out the case. It has been his categorical defence that the monies repaid in the year 2001 itself and the impugned cheque was given as and by way of security. The stand that cheque would be for repayment of time barred debt was taken at the stage of trial. This stand now cannot be accepted. 5. The Courts have appreciated the facts and circumstances in the proper manner and have arrived at appropriate conclusion. The defence of the applicant has been rightly negatived. In the result, no interference is required in the impugned order. 6. Hence, petition is dismissed. (R.Y.GANOO, J.)