1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL REVISION APPLICATION NO. 450 OF 2009 Shri Jagnnivas Shrinivas Bhat ...Applicant Vs. Shri Prabhakar Sambhaji Ghole & Ors. ...Respondents Mr.M.R.Deshpande, Advocate for the Applicant Mr. P.D. Sawardekar, Advocate for Respondent No.1 Mr. S.R. Shinde, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 5TH NOVEMBER, 2009 P.C. 1.The applicant was the accused in the initial prosecution under Section 138 of the Negotiable Instrument Act. He came to be convicted by the learned Metropolitan Magistrate, 12 th Court, Bandra, Mumbai under judgment dated 27 th February 2008. His Appeal to the Sessions Court, Greater Mumbai being Appeal No. 182/2008 has been dismissed. This Revision is filed therefrom. 2.The applicant entered into an M.O.U with the Respondent No.1, who was his investor under a scheme for repayment of the amounts invested. As per the M.O.U the applicant was to repay Rs.60,000/- by 12 monthly installments of Rs.5000/- each. The M.O.U was executed on 31 st October 1998. The entire liability would, therefore, be 2 discharged by 31 st October 1999. The applicant gave a cheque dated 14 th September 1999, which would be after the last payment of the 12 th installment. 3.The applicant contends that, that was the cheque given by way of security. The security is essentially meant to secure the amounts payable. Hence, if the amounts are shown to be paid, which in this case were by 12 monthly installments, then only the cheque given by way of security would be required not to be used. The applicant has not shown, if and how he repaid the amounts in the 12 monthly installments. 4.In fact admittedly the applicant had such schemes with various other investors. 5.The applicant failed to pay the tax. His account came to be freezed on 9 th November 1998, Rs.6,10,000/- was in his account at the relevant time. That was paid to the Income Tax department by the Bank in which the account of the applicant was running on 10 th December 1998. The Bank Officer who has been examined has shown the relevant dates in respect of the operation of the account. His cross examination shows that 29 cheques issued by the applicant herein came to be bounced, because the account was freezed. After the payment made to the Income Tax department on 9 th November 1998 the applicant s account came to be closed and hence, 3 had no sufficient funds to meet the liabilities under the various cheques issued by the applicant including the cheque issued to the Respondent No.1. 6.The respondent No.1 deposited the cheque dated 14 th September 1999 on 28 th December 1999 on which date the account was closed, because it was previously freezed. Hence on that date there was no sufficient funds, and in fact no funds at all in the applicant s Bank Account. 7.The applicant has admitted that the cheque was issued. It is his case that it was for security. He has not shown how the monthly payments were made. Hence, the cheque given by way of security must be used to secure the liability towards the Respondent No.1. That could be secured only by honouring the cheque given by way of security. The security remained at that, since the cheque came to be dishonoured. Hence the Respondent No. 1 received neither the monthly installments during the year between 31 st October 1998 and 31 st October 1999, nor the amount under the cheque which came to be deposited after that period. 8.The applicant has not shown how the presumption of liability for the amount of consideration under the cheque can be rebutted. The applicant has not shown how the Respondent No.1 could not have been paid even 4 the cheque. 9.Mr. Deshpande on behalf of the applicant drew my attention to several letters written by the applicant to the Commissioner of Income Tax asking for return of the property. The property was the amount freezed in the bank account upon which the cheque was issued. The Income Tax authority has stated that amount is only to be utilised for payment to the investors. The Respondent No.1 is one such investor. 29 such other investors cheques have also been similarly dishonoured. 10.The case of the Respondent No.1 has been considered by the 2 Courts below. The conviction cannot be faulted. 11.The criminal Revision Application is dismissed. 12.The applicant shall surrender before the trial Court, failing which the relevant Police Station being the Khar Police Station shall take the applicant in custody. (SMT. ROSHAN DALVI, J.)