((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.761 OF 1996 Shilpa Transport Service through its proprietor Shri Vijaykumar Basavatia Appellant versus Shrilaxmi Shankar Pande & anr. Respondents Mr.Niranjan Mundargi i/by A.P.Mundargi for the appellant. Mr.J.P.Yagnik, APP for the State. CORAM : A.S.OKA, J. DATE : 04th February 2009 JUDGEMENT : 1. I have heard the submissions of the advocate for the appellant. None appeared for the first respondent when the submissions were heard yesterday. Hence, the appeal was adjourned till today. When the appeal is called out today, none appears for the first respondent. Hence, I am proceeding to deliver the judgement. 2. The appellant is the proprietor of M/s.Shilpa Transport Service. The appellant filed a complaint under section ("u/s" for short) 138 of the Negotiable Instructions Act, ((-2-)) 1881 (hereinafter referred to as "the Act of 1881") against the first respondent. The case of the appellant is that he is carrying on business as a public carrier. The case is that the appellant employs vehicles owned by various persons in the transport business. For recording the business transactions made by using the vehicles, a mutual and open current account is opened by the appellant in respect of such vehicles. The first respondent is the owner of two tankers more particularly described in the complaint. The first respondent had employed the said two tankers in the business of the appellant on understanding that the first respondent-accused shall satisfy the liability as shown in the mutual and open current account maintained by the appellant in respet of said tankers. It is alleged that in respect of the said tankers by the end of January 1993, the first respondent was liable to pay certain amounts as reflected from the said mutual and open current account. In discharge of the said liability, two cheques in the sum of Rs.1,25,501/- (Cheque No.065494) and Rs.1,26,825/- (Cheque No.065495) dated 22nd March 1993 and 23rd March 1993 respectively were issued by the first respondent. The said ((-3-)) cheques were returned dishonoured to the appellant under the advise memo of the concerned bank dated 23rd March 1993. A notice in writing dated 30th March 1993 was issued by the appellant to the first respondent calling upon the first respondent to pay the amounts covered by the cheques. The amount was not paid within the stipulated time notwithstanding the receipt of the notice. Therefore, a complaint was filed by the appellant. 3. The defence of the first respondent broadly appears to be that the case is totally false and infact the appellant is liable to pay certain amounts to the first respondent and to avoid the payment of said amount, a false complaint has been filed. The appellant examined himself. The appellant also examined three other witnesses namely Narayan Sharma, Ganesh Gaikwad and Shekhar Sohoni. The last witness examined by the appellant was also examined by the first respondent as a defence witness. The learned Magistrate by judgement and order dated 28th September 1993 convicted the first respondent and sentenced him to suffer rigorous imprisonment for nine months and to pay a fine of Rs.5,000/-. In default of ((-4-)) payment of fine, he was directed to suffer simple imprisonment for two months. An appeal was preferred by the first respondent before the Sessions Court. The appellant filed a revision application for enhancement of the sentence. By the impugned judgement and order the learned 6th Additional Sessions Judge acquitted the first respondent. 4. The learned counsel appearing for the appellant has taken me through the impugned judgement and order, the complaint, notes of evidence and the judgement of the learned Magistrate. He submitted that the impugned judgement is perverse inasmuch as an altogether new defence was allowed to be pleaded by the learned Sessions Judge. He pointed out that the learned Sessions Judge has come to a strange conclusion that the cheques in dispute had been issued in the year 1991 and therefore, the said cheques cannot be held as issued for discharging the liability of the first respondent as on 31st January 1993. He pointed out that the said case was never made out by the first respondent before the Trial Court and infact a suggestion was also not given to the appellant and witnesses examined by him that ((-5-)) the cheques were issued in the year 1991. He submitted that even in the statement under section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code"), such a stand was not taken by the first respondent. He submitted that the view taken by the learned Judge could not have been taken on the basis of the evidence on record and only conclusion which could be drawn from the evidence is of guilt of the first respondent. 5. I have carefully considered the submissions. I have perused the record of the case. The appellant stepped into witness box and deposed as per his complaint. He deposed that an open and current account in respect of two tankers of the first respondent was maintained. He deposed that up to January 1993 the first respondent was liable to pay a sum of Rs.1,25,501/- in respect of Tanker bearing No.MCU-2517, a sum of Rs.35,201/- in respect of Tanker No.MWU-4687 and a sum of Rs.93,724/- in respect of Tanker bearing No.GT-6T-6667. the extracts of accounts in respect of three tankers were produced on record. The extracts in relation to tanker no.MWU-4687 are at Exhibits-14 to Exhibits-16 respectively. The ((-6-)) extracts in respect of tanker no.GT-6T-6667 are at Exhibit-17 and Exhibit-18 and extracts of accounts in respect of third tanker bearing no.MCU-2517 are at Exhibit-20 to Exhibit-22 respectively. The appellant was cross examined by the advocate for the first respondent. It must be noted here that the appellant deposed in the examination-in-chief that the extracts at Exhibits-14 to 22 were duly signed by the first respondent in confirmation of the contents thereof. A suggestion was given in the cross examination that the said extracts do not bear the signatures of the first respondent. The correctness of the said suggestion was denied by the appellant. During the cross-examination the appellant was called upon to produce the statement of account relating to the said three tankers for the months of February, March and April 1993. The said extracts were accordingly produced by the appellant at Exhibits-34 to 37. The appellant admitted that the said extracts are not signed by the first respondent. A perusal of the entire cross examination shows that not even a suggestion was given to the complainant that the cheques in dispute were issued in the year 1991. ((-7-)) 6. PW-2 Nanuram Bhagwantiprasad Sharma was examined to prove the extract at Exhibit-19. He deposed that he along with one Ganesh Gaikwad has prepared the statement of accounts. He stated that the extract of account at Exhibit-19 was prepared by him. PW-3 is Ganesh Vishnu Gaikwad who prepared the extracts at Exhibits-14 to 18 and 20 to 22. He stated that the original copies of the extracts at Exhibits-14 to 18 and 20 to 22 were given to the accused. He identified the signatures of the accused on Exhibits-15 and 22. 7. PW-4 Shekhar Shankar Sohoni is an employee of Thane Janata Sahakari Bank Limited, Branch Thane. He stated that the cheques at Exhibits-23 and 24 were presented by the appellant at the said bank. He stated that the first respondent was having account bearing no.2837 with the said bank and even the appellant was having account no.CC-58 with the bank. He stated that the cheques at Exhibits-23 and 24 are not stamped or endorsed in any way because both the accounts were of the same bank and, therefore, the cheques are not required to be stamped or endorsed. He ((-8-)) stated that the cheques were presented by the appellant on 23rd March 1993. As the funds were insufficient, the cheques were not honoured and return memorandum at Exhibits-25 and 26 were issued by the said bank. He identified the signature of Mrs.Lokhandwala, an officer of the bank on Exhibits-25 and 26. The witness produced certified extract of the account of the first respondent. He also produced the original ledger account in respect of the said account. 8. In the cross examination he stated that a cheque book containing cheques bearing nos.65491 to 65500 was issued by the bank to the first respondent on 16th August 1991 and the cheque book containing cheque nos.97071 to 97080 was issued by the said bank to the first respondent on 19th January 1993. In the cross examination the witness produced the cheque return register containing the endorsements regarding dishonour of cheques at Exhibits-23 and 24. He denied the suggestion that the cheques were not presented to the bank. At the end of the cross examination a suggestion was given to the said witness by the advocate for the first respondent-accused that the first ((-9-)) respondent had intimated in writing to the bank that the earlier cheque book was lost. The response of the witness was : "... ... I do not know if at the time of issuing the second Cheque Book, accused had intimated in writing to our bank that his first or earlier cheque book was lost. ... ..." 9. Surprisingly PW-4 Shekhar Sohoni was also examined by the first respondent as a defence witness. In the examination-in-chief no question was asked to the said witness as regards the aforesaid suggestion. The witness was questioned on the second cheque book issued to the first respondent by his bank on 19th January 1993 containing cheque nos.97071 to 97080. The witness was cross examined by the advocate for the appellant. The relevant part of the cross examination reads thus:- "... ... Extract of Ledger Account Exh.42 is now shown to me and after seeing this extract, I can say that on 27.1.93 one cheque bearing no.65496 was presented in the bank and this cheque was from the earlier cheque book and it was not from the cheque book which I have referred above." Thus, the defence witness himself admitted that on 27th January 1993 the first respondent- accused issued a cheque bearing no.65496 which ((-10-)) was presented to the bank and the said cheque was out of first cheque book issued on 16th August 1991 containing cheque nos.65491 to 65500. Thus, the witness examined by the first respondent in the cross examination admitted that after the second cheque book was issued to the first respondent, on 27th January 1993 cheque no.65496 was drawn by the first respondent and the said cheque was presented to the bank for payment. It must be noted here that the cheques subject matter of the complaint bear numbers 65494 to 65495. 10. The learned Magistrate had recorded a finding that the cheques at Exhibits-23 and 24 were issued by the first respondent in favour of the appellant in discharge of monetary liability arising out of the business transaction. 11. It will be necessary to refer to the findings recorded by the learned Additional Sessions Judge. The learned Judge has referred to the evidence of the prosecution witnesses. The learned Judge has referred to the defence taken that the cheques at Exhibits-23 and 24 do not bear the endorsement of the bank. As far ((-11-)) as this aspect is concerned, PW-4 Shekhar Sohoni deposed that both, the appellant and the first respondent, were having accounts in his bank and the cheques were drawn by the first respondent on his account with the same bank. He stated that considering the fact that both the accounts were with his bank, the cheques were not required to be stamped or endorsed. This version of the witness has not been challenged by the first respondent in the cross examination. The same PW-4 was examined as a defence witness. He was not questioned on this aspect in the examination-in-chief. Thereafter the learned Judge referred to the defence taken that the disputed cheques were blank cheques drawn from the cheque book issued in the year 1991. Infact in paragraph 13, there is a reference to the fact that for the first time in appeal the case of blank cheque was made out. In paragraph 13 the learned Judge has observed thus:- "13. ... ... Therefore, this fact would go to show that the Exh.23 and 24 pertains to cheque book of 1991. It is also admitted fact that there was some transactions and admittedly, the complainant was paying loan to Mr.Due and that is why, it is probable that for the security of the said amount of the loan the accused handed over the blank cheques in the year 1991. This fact of payment ((-12-)) of loan to Mr.Dube is admitted by the complainant in the notice Exh.27. The defence witness only expressed his view that the cheque of book 1991 was utilised in 1993, but that does not mean a departure from normal course was adopted by the accused. Under section 114 of the Evidence Act, the Court may presume the existence of any fact, which it things likely to have happened, regard being had to the common course of natural events, human conduct and public and private business in the relation to the facts of the particular case. There were transactions. There was also cheque book of 1991 and the cheque was signed in Marathi or Hindi, but the contents have been written in English, therefore, all these circumstances will go to show that the execution of cheque was not conscious and that the accused never intended to bring into existence such a cheque voluntarily and that too for the aforesaid transaction pertaining to end of Jan.1993. On the contrary, it appears that complainant tried to put bullocks behind the card." 12. In paragraph 15 of the judgement, the learned Judge observed thus:- "15. The learned counsel Mr.S.M.Kale therefore, submitted that when the probabilities are that the complainant might have utilised old cheques of 1991, then it is difficult to connect these cheques to the liability which finds a place in the account Exh.14 to 22. Sec. 138 of N.I.Act provides that there should be the handing over of the cheques to discharge in whole or in part any debt or any other liability. The learned Counsel for the complainant seriously objected to canvassed the said preposition for want of the similar plea before the trial court and absence of specific suggestions. Now there are suggestions that the complainant fabricated the cheques falsely and even the accused vide immediate reply on record Exh.29 the ((-13-)) accused demanded the xerox copies of the cheques immediately and therefore, this conduct on the part of the accused would go to show that accused doubted the genuineness of the cheques. of course because, the accused was surprised as he never issued the cheques in the year 1993." In the same paragraph the learned Judge proceeded to observe thus :- "... ... The accused by his cross- examination, brought on record that the complainant as paying the loan and the cheque numbers pertains to the cheque book of 1991 and the signatures on the cheques is in Hindi and other contents are in english; therefore, all these circumstances are sufficient to show that these cheques were never issued in the year 1993 and against, the liability exist in the year 1993, January, 3rd. ..." 13. Thus, in substance, the finding recorded by the learned Judge is that there was every possibility that the disputed cheques were issued in the year 1991 which might have been used in the year 1993. The learned Judge held that there were two possibilities. One is that the cheques signed by the first respondent in the year 1991 have been used in the year 1993 or the cheques of the year 1991 might have been handed over actually in the year 1993. The learned Judge held that as these two views are possible, an order of acquittal was required to ((-14-)) be passed. 14. It is pertinent to note that in the cross examination of the appellant no suggestion was given to the effect that the disputed cheques at Exhibits-23 and 24 were issued in the year 1991. No case is put to the witness that the cheques were issued in the year 1991 which were used by the appellant in the year 1993. Infact in the statement under section 313, no such case appears to have been made out. It is pertinent to note that the statement under section 313 of the said code of the first respondent was recorded on the very day on which PW-4 Shekhar Sohoni was examined. The said witness was again examined by the first respondent as a defence witness. Thereafter additional statement under section 313 of the first respondent was recorded. As pointed out earlier, the said witness examined by the first respondent stated in the cross examination that a cheque was presented to the bank on 27th January 1993 which was from the first cheque book delivered to the first respondent on 16th August 1991. The said point was specifically put to the first respondent in the statement under section 313 of the said Code. The ((-15-)) response of the first respondent was he was not aware. 15. On the one hand the first respondent never gave a suggestion to the appellant in his cross examination that the cheques issued in the year 1991 were used in 1993. On the other hand, the defence witness examined by the first respondent himself stated that one cheque bearing no.065446 out of the cheque book issued in August 1991 was presented to the bank on 27th January 1993 i.e. after the second cheque book was issued to the respondent. However, the learned Additional Sessions Judge has observed that the possibility of the appellant using the cheques issued in the year 1991 in the year 1993 cannot be ruled out. This was never the case of the 1st respondent and there was no factual foundation for the said observation. This observation is made by the learned Judge probably only on one ground that the cheque book was issued in the year 1991. However, he has completely ignored the evidence of the defence witness that out of the same cheque book issued in the year 1991 a cheque was drawn on 27th January 1993. In this view of the matter, the ground on which the order of ((-16-)) acquittal has been passed appears to be clearly erroneous and no such view could have been taken on the basis of the evidence on record. 16. On the other hand, the extracts of account maintained by the appellant in respect of three tankers have been produced and proved. The said extracts are at Exhibits-14 to 22. PW-2 and 3 have been examined to prove the said extracts. It must be borne in mind that neither the Trial Court nor the Appellate Court has held that the presumption under section 139 of the Negotiable Instruments Act, 1881 has been rebutted. There is no dispute regarding receipt of demand notice. There is no dispute that the demand notice was issued within the time provided and that the complaint was lodged within the time provided by law. In the circumstances, the appellant has clearly established that the disputed cheques were issued in discharge of a legally enforceable debt or liability. Therefore, the guilt of the first respondent for the offence under section 138 of the said Act of 1881 was established beyond any reasonable doubt. Hence, the order of acquittal will have to be set aside. ((-17-)) 17. It must be stated here that the Trial Court had sentenced the first respondent to suffer rigorous imprisonment for nine months. The Trial Court directed the first respondent to pay a fine of only Rs.5,000/-. The reason given by the learned Judge for showing leniency is not the conduct of the first respondent. Infact the learned Judge held that he is not entitled to any leniency. The reason given by the learned Judge reads thus :- "... ... Moreover, amount in the case is such a big one that law has provided payment of fine to the extent of double of the cheque amount. In this case, even fine upto Rs.5,00,000/- can be imposed upon the accused but because of the limited jurisdiction, I am inflicting reasonable fine amount of Rs.5,000/- but I do not spare the accused from substantive imprisonment. ... ..." 18. It must be stated here that a revision application was filed by the appellant for enhancement but the same was dismissed by the impugned order as the learned Judge passed the order of acquittal. 19. Under section 138 of the said Act of 1881 there is a power vested in the learned Magistrate to impose a fine which may extend to twice the amount of the cheque and the accused ((-18-)) can directed to suffer imprisonment which may be extended to two years. The learned Judge has observed that he is not empowered to impose the fine amount exceeding Rs.5,000/-. It will be necessary to refer to section 143 of the said Act of 1881 and in particular sub-section 1 thereof. The said section confers power on the Judicial Magistrate, First Class ("JMFC" for short) or a Metropolitan Magistrate to try an offence under the said Act of 1881. Thus, the jurisdiction is conferred on the learned JMFC by section 143 of the said Act of 1881 and not by the said Code of 1973. The record shows that summary trial was not held by the learned Magistrate. 20. Hence, the first respondent was required to be saddled with the order for payment of an amount double the amount of the cheques. The total amount covered by the said two cheques is Rs.2,52,326/-. Hence, the amount will have to be fixed at Rs.5.00 lakhs. 21. Hence, this modification is being made to the order passed by the Trial Court and I am reducing the period of substantive sentence to six months. ((-19-)) 22. Hence, I pass following order :- (a) The impugned judgement and order dated 15th December 1995 passed in Criminal Appeal No.100 of 1993 is quashed and set aside; (b) The order of conviction passed on 28th September 1993 by the Trial Court is restored; (c) The first respondent is directed to suffer rigorous imprisonment for a period of six months and to pay an amount of Rs.5.00 lakhs (Rs.Five lakhs only) to the appellant. If the amount is not paid within a period of six months from today, the first respondent shall undergo rigorous imprisonment for three months; (d) The appeal is allowed accordingly. (A.S.OKA, J.)