IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE APPELLATE SIDE APPELLATE SIDE CRIMINAL REVISION APPLICATION NO. 294 OF 2008 CRIMINAL REVISION APPLICATION NO. 294 OF 2008 CRIMINAL REVISION APPLICATION NO. 294 OF 2008 Jasmine V. Vanvari. ... Applicant. V/s. 1. The State of Maharashtra. 2. Mayank Himatlal Makwana. ... Respondents. Ms.Usha Purohit for the applicant. S.R.Shinde, A.P.P. for the State. H.K.Dihenker for respondent No.2. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. CORAM: V.C.DAGA, J. DATED: 2nd July 2008. DATED: 2nd July 2008. DATED: 2nd July 2008. P.C.: P.C.: P.C.: ---- ---- ---- . This criminal revision application is filed by the applicant- accused to challenge the judgment and order dated 26th June, 2008 passed in Criminal Appeal No.350/2007 by the Additional Sessions Judge, Greater Bombay at Dindoshi, Borivli Division whereby the appeal is dismissed and the judgment and order 16th June, 2007 passed in C.C.No.3372/SS/2005 by the Metropolitan Magistrate, 43rd Court, Borivli, Mumbai is confirmed. The learned Metropolitan Magistrate had convicted the applicant-accused under section 255(ii) of Code of Criminal Procedure, 1073 for the offences punishable under section 138 of Negotiable Instruments Act and directed him to pay Rs.1,50,000/- to the complainant as compensation, in default to suffer S.I. for six months. 2. The complainant claims to be closely acquainted with the applicant- accused past several years as both happened to be the members of the institute NIRI. 3. According to the complainant, the accused demanded from him hand loan of Rs.1,50,000/-. The complainant withdrew Rs.1,50,000/- from his bank account and handed over the said amount to the accused, who, in discharge of her liability, issued a cheque of Rs.1,50,000/- bearing No.068002, dated 25th April, 2004 drawn on UTI Bank, Malad (West) 4. The cheque was presented by the complainant for encashment through ICICI Bank on 25th April, 2005. The same was returned unpaid by the UTI Bank with remark "Account closed" vide its memorandum dated 27th April, 2005 which was received by the complainant on the same date. 5. The complainant, thereafter, issued notice - 3 - dated 29th April, 2005 under section 138 of the N.I.Act by R.P.A.D. and called upon the applicant/accused to make the payment of Rs.1,50,000/- within a period of 15 days from the date of receipt of the notice. The accused refused to accept the same as such it was returned to the complainant by the postal authority with postal remark "Refused". An additional copy of the said notice was sent to the accused under Certificate of Posting which was received by her. The non-compliance of the notice, ultimately, resulted in filing complaint under section 138 of the N.I.Act. 6. The applicant- accused is a homoeopathic doctor associated with the Institute called NIRI. According to the applicant-accused, on 12th January, 2005, she lastly visited the office of NIRI which was also used by the complainant/respondent No.2 as his residence. According to the applicant, she was carrying her bank record as she had to go to her bank, i.e. UTI Bank at Malad. After finishing her work, she returned home and realised that those documents were missing from her purse. The applicant, on realising the aforesaid loss of documents, approached to the UTI Bank on 13th January, 2005 and made written request for closure of her bank account and withdrew - 4 - sum of Rs.40,000/- lying in credit. The bank closed her account under intimation to her vide letter dated 15th January, 2005. According to the complainant, she also reported loss of documents at Rajendra Nagar Police Chowky, Borivli (East), Mumbai. The applicant, thus, denied to have issued any cheque to the complainant/ respondent No.2. 7. With the aforesaid rival contentions, criminal complaint was tried by the Metropolitan Magistrate. The complainant produced original cheque together with original cheque-return memo of UTI Bank; original covering memo of ICICI Bank; photo copy of the notice of demand followed by postal receipts and original envelope returned with postal remark "Refused". 8. The complainant filed affidavit in support of his complaint by way of examination-in-chief. He was cross-examined by the advocate of the accused. The complainant proved his complaint and also other documents filed by him. The complainant during his cross-examination stated as under:- "I had withdrawn to money from bank which was given to the accused. I can show the entry of Bank that effect. I am producing the Original. It is marked Exhibit P-9." - 5 - The aforesaid adverse material is brought on record by the accused herself during the cross-examination of the complainant. This piece of evidence is sufficient to demonstrate withdrawal of Rs.1,50,000/- from the account of the complainant. This evidence is sufficient to establish nexus between the withdrawal of the amount and payment thereof as hand-loan to the accused. Thus, both the Courts below rightly found consideration for giving subject cheque to the complainant. 9. In the cross-examination of the complainant, further adverse material is brought on record, reading as under:- "Besides the transaction in question other 3 to 4 transaction were taken place between me and accused." When the above adverse material came on record implicating the accused with respect to earlier 3 to 4 transactions, it was expected on the part of the applicant- accused to pursue further cross-examination of the complainant to demonstrate the falsity of - 6 - statement made by him. No such attempt was made. This piece of evidence goes to establish that there were 3 or 4 such transactions between the parties. This evidence demolishes the case of loss of cheque book and misuse of subject cheque by the complainant. 10. In the further cross-examination of the complainant, it was suggested to him that the contents of the cheque were written by the complainant. As a matter of fact, no such suggestion was required to be given if the cheque was not given by the accused to the complainant. The question is pregnant with the knowledge that the cheque duly signed was given by the accused but the contents were written by the complainant. 11. With the above evidence, if one turns to the evidence of the accused, she has also filed her affidavit by way of examination-in-chief; wherein she has admitted receipt of notice under section 138 of N.I.Act. She further admitted having refused to accept the said notice sent by R.P.A.D. She has admitted receipt of the notice sent under postal certificate. She also admitted that she did not reply to the said notice. - 7 - 12. At this juncture, it may be relevant to note that this Court in Yogendra Bhagatram Sachdev v. Yogendra Bhagatram Sachdev v. Yogendra Bhagatram Sachdev v. State of Maharashtra State of Maharashtra State of Maharashtra, 2003 All MR (Cri) 639, has observed that failure to reply to the notice under section 138 of the Act not being explained would raise a presumption that the accused had, in fact, no defence whatsoever. In the present case, no potent explanation has been given by the accused for not replying to the notice. Whatever explanation is furnished does not appeal to the judicial mind. It was rightly rejected by both the Courts below. 13. The accused has further stated on oath that she made a police complaint with respect to the loss of documents. If one turns to the contents of the police complaint, it incorporates details and particulars of the missing documents. No reference is to be found with respect to the cheque-book from which the subject cheque was issued in favour of the complainant. This omission speaks volume about the design on the part of the accused to avoid to honour cheque in question. Absence of reference to the cheque-book has not been explained by the accused. - 8 - 14. Another defence, said to be a potent legal defence sought to be raised by the accused is that when the alleged cheque alleged to have been issued by the accused, the account was already closed, therefore, presumption under section 138 of the N.I.Act cannot be raised since no account was maintained by the accused with the bank. The submission made holds no water in view of the well settled legal position that section 138 is applicable even in case of already closed account as held by the Apex Court in N.A.Issac v. Jeemon P.Abraham N.A.Issac v. Jeemon P.Abraham N.A.Issac v. Jeemon P.Abraham, 2005 All MR (Cri) 1519 (SC). 15. The applicant- accused did not dispute her signature on the subject cheque. In the case of K.Bhaskaran v. Sankaran Vaidhyan Balan K.Bhaskaran v. Sankaran Vaidhyan Balan K.Bhaskaran v. Sankaran Vaidhyan Balan, (1999) 7 SCC 510, the Supreme Court has observed that when the signature on the cheque is admitted to be that of the accused, the presumption envisaged in section 118 of the Act can be legally inferred that the cheque was made or drawn for consideration on the date which the cheque bears. The Supreme Court has further held that section 139 of the Act enjoins on the Court to presume that the holder of the cheque received it for the discharge of any debt or liability and the burden is - 9 - on the accused to rebut the aforesaid presumption. No material is brought on record by the accused to rebut the said presumption. 16. The learned counsel for the applicant- accused tried to rely upon the judgment of this Court dated 4/5th March, 2008 passed in Criminal Revision Application No.256/2007 (Rajendraprasad s/o. Rajendraprasad s/o. Rajendraprasad s/o. Gangabishen Porwal v. Mr.Santoshkumar Parasmal Gangabishen Porwal v. Mr.Santoshkumar Parasmal Gangabishen Porwal v. Mr.Santoshkumar Parasmal Saklecha & Anr. Saklecha & Anr. Saklecha & Anr.) (unreported). Having gone through this judgment, reliance placed is misplaced. 17. In the above view of the matter, the concurrent findings of fact suffered by the applicant- accused cannot be interfered with, in the revisional jurisdiction of this Court. 18. This Court not being a Court of appeal, cannot substitute its view in exercise of revisional jurisdiction. Revisional jurisdiction is not only limited in scope but is also discretionary. The Court interferes in the revisional jurisdiction only in exceptional cases of flagrant miscarriage of justice as held by Apex Court in the case of State of State of State of Rajasthan v. Gurucharandas Chaddha, AIR 1979 SC 1895. Rajasthan v. Gurucharandas Chaddha, AIR 1979 SC 1895. Rajasthan v. Gurucharandas Chaddha, AIR 1979 SC 1895. - 10 - If two views are possible on the basis of evidence on record, the higher Court should not disturb the findings of the trial Court is the settled law (see Varghese Thomas v. State of Kerala Varghese Thomas v. State of Kerala Varghese Thomas v. State of Kerala, 1977 SC 701). 19. In the above view of the matter, no case is made out to entertain this revision application. The revision application is liable to be dismissed. 20. At this stage, learned counsel for the applicant prayed for time to deposit amount of compensation awarded by the trial Court. The prayer made is opposed by the learned counsel for the complainant/ respondent No.2. However, by way of last chance, in the interest of justice, applicant is granted two weeks time to deposit the compensation amount. The applicant is also directed to surrender before the trial Court during this period. 21. In the result, revision application is dismissed in limine with no order as to costs. JUDGE JUDGE JUDGE