1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL REVISION APPLICATION NO.311 OF 2010 WITH CRIMINAL APPLICATION NO.188 OF 2010 Sahebrao V. Falke ...Applicant. v/s. Dnyanu M. Chavan & Anr. ...Respondents. Mr. Surel S. Shah, ,adv. For the Applicant. Smt. V.R.Bhosale, APP For the Respondent No.2/State. CORAM : J.H. BHATIA, J. DATED : APRIL 6, 2011. P.C. 1 Heard the learned counsel for the applicant. Applicant was convicted for the offence under Section 138 of the Negotiable Instruments Act and was sentenced to undergo S.I. for two months and to pay compensation of Rs.1,10,000/-. Appeal preferred by the accused against the conviction and sentence was dismissed. Against that he has filed the present revision application. 2 To state in brief, it is the case of the complainant/respondent no.1 that he was running business in fruits in the name and style of Ganesh Fruit Suppliers. Accordingly, he had supplied pomegranate worth Rs.1 lac to the accused during January and February, 2002 towards the payment of the price. Accused had issued cheque dated 2 7.3.2002 for Rs.1 lac drawn on his account SBI, Sangola Branch in favour of the complainant. According to the complainant, accused had requested him to present the cheque for encashment after 1.7.2002, therefore, on 9.7.2002, he deposited same cheque with his banker for encashment. However, cheque was returned unpaid with endorsement 'Insufficient Funds'. In spite of service of the statutory notice, accused failed to make the payment of the cheque amount, therefore, complaint was filed. 3 Accused pleaded not guilty. According to him, he used to get tempo of the complainant for transporting pomegranate to Bombay, and, therefore, there were close relations between the complainant and the accused. On 7.3.2002 son of the complainant had threatened to commit suicide by consuming poison because of the dispute regarding purchase of TATA Sumo vehicle, therefore, accused had given cheque of Rs.1 lac in favour of the complainant on 16.3.2002. Accused and the complainant went to Sangola where the accused had withdrawn an amount of Rs.1,70,000/- from his account and paid Rs.1 lac to the complainant for purchase of TATA Sumo vehicle but he had not taken back cheque, which was later on misused. Complainant examined himself and also the bank officer. On behalf of the accused, D.W.1 3 Bapurao Shirkute was examined. Courts below did not accept the defence of the accused. There was no dispute that the cheque was issued by the accused in favour of the complainant and that cheque was dishonoured. Both the Courts below held that the accused had failed to rebut said presumption. It is difficult to understand firstly as to why accused had given cheque of Rs.1 lac to the complainant if there was dispute in the family of the complainant about the purchase of the TATA Sumo vehicle. Even if he had issued cheque, it is not clear as to why he had paid Rs.1 lac. About payment of Rs.1 lac there is no receipt. If there was no liability to be discharged by the accused, there was no reason for him to issue either cheque or make payment in the cash. According to the complainant, relations between the parties were very cordial. If so, there is no reason for the complainant to misuse the cheque. The learned counsel for the accused/applicant contended that complainant had clearly admitted that he had no document to show that he had supplied goods to the accused or that amount was due from him and, therefore, conviction under section 138 can not stand. In support of this, he placed reliance upon Kumar Exports v/s. Sharma Carpets 2009(4) Mh.L.J. 23. Infact in Kumar Exports (Supra), the Supreme Court held that presumption under Section 118 and 139 of the Negotiable Instruments Act are 4 rebuttable and will live exist and survive and shall end only when contrary is proved by the accused, i.e., cheque was not issued for a consideration and in discharge of any debt or liability. In that case, complainant himself had made declaration to the Sales Tax Department that no sale had taken place and that statement was accepted by the Sales Tax Department. Thus, by the statement of the complainant himself before the Sales Tax Department, presumption was rebutted. In my opinion, this authority is not applicable to the facts of the present case In view of the facts and circumstances, I find no reason to interfere in the concurrent findings of the Courts below in respect of conviction and sentence. 4 Therefore, revision application stands dismissed. 5 As the revision application itself is disposed off, application no.188 of 2010 does not survive and stands disposed off accordingly. (J.H. BHATIA,J.)