abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 656 OF 2007 Kalim M. Khan .. Applicant V/s 1. The State of Maharashtra 2. Milind Shripad Chandurkar .. Respondents Mr.J.P. Shah for the applicant. Mr.K.V. Saste, A.P.P. for the State. Mr.J. Shekhar for respondent no.2. CORAM : D.G. KARNIK, J. DATE : 18TH FEBRUARY 2008 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: 1. Heard. 2. By this revision application, the revision applicant challenges the judgment and order dated 18th September 2007 of the Adhoc Additional Sessions Judge, Raigad dismissing the Criminal Appeal No.85 of 2006 and thereby confirming the conviction and sentence of the applicant under section 138 of the Negotiable Instruments Act passed by the Judicial Magistrate, First Class, Uran. - 2 - 3. The respondent no.2 is the proprietor of Vijaya Automobiles. According to him, in part discharge of his liability, the revision applicant issued to him a cheque dated 18th April 2005 for Rs.7,00,000/- drawn on the Development Credit Bank Ltd., Kurla Branch. The respondent no.2 deposited the said cheque in his account in Bank of India, Uran Branch, on 12th September 2005. However, the Development Credit Bank dishonoured and returned unpaid the said cheque with a memo reading: "Funds Insufficient". On 11th October 2005, the respondent no.2 sent the statutory notice by registered post A.D. as well as under certificate of posting. The applicant did not accept the notice sent by registered post A.D. However, the notice sent by certificate of posting was not returned by the post office and is deemed to have been served on the applicant. The applicant did not make the payment within 15 days of the receipt of the notice and is thus alleged to have committed an offence punishable under section 138 of the Negotiable Instruments Act. 4. The respondent no.2 filed a complaint before the Judicial Magistrate, First Class. After considering the evidence produced before him, the learned Magistrate came to the conclusion that the applicant had committed the offence and convicted him of the offence under section 138 of the Negotiable Instruments Act. As - 3 - regards the sentence, the learned Magistrate punished the applicant to suffer simple imprisonment till rising of the court and to pay compensation of Rs.7,10,000/- and in default to suffer simple imprisonment for 6 months. Learned Magistrate further directed that if the compensation amount was realised, Rs.7,00,000/- be paid to the respondent no.2 and Rs.10,000/- be credited to Raigad District Legal Aid Committee. Aggrieved by the order of conviction and sentence imposed the applicant filed an appeal, bearing Criminal Appeal No.85 of 2006, in the Sessions Court at Raigad. The Sessions Court upheld the order of conviction but modified the amount of compensation from Rs.7,10,000/- to Rs.7,00,000/- to be paid to the respondent no.2 and set aside the order directing payment of Rs.10,000/- to Raigad District Legal Aid Committee. Being aggrieved by the order of conviction sentence, compensation and imprisonment in default of payment of compensation, the applicant is before this Court in revision. 5. Learned counsel for the applicant submitted that the cheque was without consideration and was issued as security for payment of money due to the respondent no.2 by M/s Vikas Travels. In addition to the cheque in question, the applicant had also issued two other cheques, one for Rs.1,50,000/- and another for rs.4,50,000/-, both of which were also dishonoured. The - 4 - other two cheques were also issued similarly as security for payment due by Vikas Travels. The applicant was prosecuted and has been convicted in respect of the said two cheques also. The applicant has filed two other revision applications bearing Criminal Revision Application Nos.657 and 658 of 2007 challenging conviction and sentence in the other two cases. 6. Section 139 of the Negotiable Instruments Act creates a rebuttable presumption that holder of a cheque received the cheque for the discharge, in whole or part of any debt or liability. The burden of proving that the cheque is without consideration is on the issuer, that is on the revision applicant in the present case. The revision applicant neither examined himself nor examined any witness. The burden of proving that the cheque was not issued towards discharge of any debt or other liability was not discharged by the applicant. On the other hand, the respondent no.2 examined himself as well as proprietor of Vikas Travels. Considering the evidence of the respondent no.2 and the proprietor of Vikas Travels, the learned Magistrate held that the cheque was issued by the applicant not as a security for any payment by Vikas travels, but for discharge of his own liability. The finding has been confirmed by the Sessions Court. Nothing has been shown to me that the said finding is in any way erroneous much less perverse. - 5 - This finding of fact cannot be interfered with in exercise of revisional jurisdiction. In the circumstances, the contention of the applicant that the cheque was not issued towards discharge of any pre-existing liability is rejected. 7. Learned counsel for the applicant then submitted that for non-payment of compensation, the learned Magistrate has imposed substantive sentence of 6 months, which cannot be done. In support, learned counsel referred to and relied upon a decision of the Kerala High Court in SIBI v. Vilasini, reported in 1999 Cri.L.J. 878. The question as to whether a substantive sentence can be imposed on account of non-payment of the amount of compensation has been considered by the Supreme Court in Hari Singh v. Sukhbir Singh, reported in (1988) 4 SCC 551 wherein the Supreme Court has observed: (11) "The quantum of compensation may be determined by taking into account the nature of crime, the justness of the claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. - 6 - Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default." That decision has been followed and applied by the Supreme Court in Suganthi Suresh Kumar v. Jagdeeshan, reported in AIR 2002 SC 681. In view of the clear decisions of the Supreme Court that the court may enforce order of payment of compensation by imposing sentence in default, the decision of the Kerala High Court cannot be said to be a good law. There is no merit in the contention that the substantive sentence of imprisonment in default of payment of compensation could not have been imposed. 8. Lastly, the learned counsel for the applicant submitted that the cheque was issued in the name of Vijaya Automobiles and the complaint has been filed by Milind Shripad Chandurkar styling himself as proprietor of Vijaya Automobiles. However, the respondent no.2 has not adduced any evidence to show that Milind Chandurkar was the proprietor of Vijaya Automobiles. The contention that the respondent no.2 was not the proprietor of Vijaya Automobiles was specifically raised by the applicant before the learned Magistrate. The contention has been dealt with by the learned Magistrate - 7 - in paras 8 and 9 of his judgment as follows:- "8. Accused came with the case that the complaint is filed on behalf of the Vijaya Automobiles. But the complainant had not filed any evidence to show that he is a Proprietor of Vijaya Automobiles. Hence, he has no ’locus standi’ to file this case. 9. Accused came with the defence that he handed over said cheque to complainant only as a security. Thus, he admitted that the complainant is having actual control over the Vijaya Automobiles. Proprietary concern is not an independent legal entity and its identity is inseparable from the proprietor. Thus, the complainant has locus standi to file this case." The learned Magistrate has held that a proprietary concern is not an independent legal entity and its identity is inseparable from the proprietor. So far, he is clearly right. However, the learned Magistrate has not considered at all whether evidence at all was produced by the respondent no.2 to prove he was the proprietor of Vijaya Automobiles. This proof was necessary as the applicant had specifically contended that the respondent no.2 was not the proprietor of - 8 - Vijaya Automobiles. 9. Even the decision of the learned Sessions Judge shows that no evidence was adduced by the respondent no.2 to show that he was the proprietor of Vijaya Automobiles. The evidence of the respondent no.2 and his witness, proprietor of Vikas Travels was analysed by the learned Sessions Judge thus:- "12. The complainant Milind Chandurkar has examined himself Ex.21 and testified that there was meeting between himself, accused and and his brothers and the Proprietor of Vikas Travels Shri S.K. Sharma were present in the meeting. The meeting was held in the month of December 2004. He testified that as per the oral agreement between himself and accused, he has supplied Diesel and Petrol on credit basis. The accused and his brothers have made payments on earlier occasions, either in cash or by way of cheques. He also testified that accused has issued said cheque and it was presented for encashment within the period of six months, but it was not encashed. The perusal of cross-examination indicates that he did not produce any documentary evidence to show that he is the owner or proprietor of Vijaya - 9 - Automobiles. He admitted that he did not obtain signatures of accused on duplicate bills. The accused did not give any letter to him to supply petroleum products on credit basis. He is unable to state whether handwriting on the cheque Ex.26 is of the accused or any other person. He admitted that sometimes it may happen that he accepts cheques for security purpose. Previously he took the cheques for security purpose from ONGC and JNPT." (underlining supplied) After having held that the respondent no.2 had not adduced any evidence to show that he was the proprietor of Vijaya Automobiles, the learned Sessions Judge ought to have held that he had no authority to initiate the prosecution. In the absence of any proof that the respondent no.2 was the proprietor of Vijaya Automobiles, in whose favour the cheque was issued, the respondent no.2 was clearly not entitled to file the complaint. 10. In the circumstances, the conviction of the revision applicant cannot be sustained. Accordingly, the revision application is allowed. The impugned order is set aside and the revision applicant is acquitted of all the charges. Fine and compensation, if it has been - 10 - paid, be refunded to the application. Rule is made absolute accordingly. Sd/- (D.G. KARNIK, J.)