IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.252 OF 2000 CRIMINAL REVISION APPLICATION NO.252 OF 2000 CRIMINAL REVISION APPLICATION NO.252 OF 2000 Kartarsingh Dhillon ..Applicant versus 1. Shri Jagjitsingh Dhenotra 2. The State of Maharashtra ..Respondents Mr.M.S.Mohite for the Applicant None for the respondent No.1 though served Ms. Jhaveri for the State. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 22nd April, 2008. DATED : 22nd April, 2008. DATED : 22nd April, 2008. ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT 1. The Respondent No.1 filed criminal case being Criminal Case No.928 of 1994 in the Court of 9th Joint Judicial Magistrate, First Class, Thane under Section 138 of the Negotiable Instruments Act against the applicant/ original accused. The applicant had the benefit of full dressed trial and the 9th Joint Judicial Magistrate, First Class, Thane, convicted the applicant and sentenced him to suffer rigorous imprisonment for one year and to pay fine of Rs.5000/- and further directed that in default of payment of fine, the applicant should undergo simple imprisonment for three months. This was done by judgment dated 25.9.1998. The -2- applicant being aggrieved by this judgment filed Criminal Appeal No.66 of 1998 in the Court of the 4th Addl. Sessions Judge Thane. The 4th Addl. District Judge, Thane by his judgment dated 2.8.2000 dismissed the appeal and directed the applicant to surrender to his bail. Being aggrieved by the judgment delivered by learned 4th Addl. District Judge, Thane dated 2.8.2000 the applicant has filed this revision application seeking to move this court in its revisional jurisdiction. Few facts necessary for the disposal of this revision application are as under: 2. The applicant owned a hotel by name Payal in Bombay and the respondent No.1 was permitted to conduct the said hotel for which the respondent No.1 had paid a sum of Rs.1,00,000/- to the applicant by way of security deposit. For some reason the respondent No.1 was required to surrender the hotel business to the applicant. On account of that the applicant delivered to the respondent No.1 a cheque dated 18.9.1993 for sum of Rs.1,00,000/- being the refund of the security deposit. The said cheque came to be dishonoured and on 11.1.1994 the respondent No.1 issued a -3- statutory notice dated 19.1.1994 as required under the provisions of Negotiable Instruments Act (hereinafter referred to as the said Act). The applicant replied to the said notice by reply dated 18.2.1994. 3. It is required to be mentioned that on record one finds affidavit at Exhibit 43 executed on 10.8.1993 by the respondent No.1. Perusal of the said affidavit would go to show that the respondent No.1 had admitted in the said affidavit that all the dues in respect of the hotel business such as purchase of food material, wine, payment of electricity charges and have been paid and no dues are outstanding. 4. At trial the respondent No.1 stepped into the witness box in support of his case. No other witness was examined by the respondent. Applicant also gave evidence. No other person gave evidence on behalf of applicant. 5. I have heard learned Advocate Mr. Mohite in support of the revision application. It is required to be mentioned that learned Advocate Mr. -4- Sandeep Patil who had once filed Vakalatnama on behalf of the respondent No.1 appeared before this Court and informed this Court that the papers have since been returned to respondent No.1 and that is how the argument of learned Advocate Mr. Patil could not be heard and I proceeded to hear the matter as if the respondent No.1 has been duly served. 6. Learned Advocate Mr. Mohite submitted that as regards issuance of the impugned cheque dated 18.9.1993, there is no dispute and that the said cheque was delivered to the respondent No.1 in regard to the so called liability arising out the refund of the security deposit. Learned Advocate Mr. Mohite had drawn my attention to the judgment of the Honourable Supreme Court in case of M.S.Narayana Menon @ Mani v. State of Kerala & M.S.Narayana Menon @ Mani v. State of Kerala & M.S.Narayana Menon @ Mani v. State of Kerala & Another reported in (2006) 6 SCC 39 Another reported in (2006) 6 SCC 39 Another reported in (2006) 6 SCC 39 and commented upon the burden to be discharged by the accused by attending to the case under Section 138 of the Negotiable Instruments Act and had submitted that the burden cast upon the accused can be discharged by the accused by way of preponderance of probability and not by way of principles of strict -5- proof as is required by the prosecution. 7. Learned Advocate Mr. Mohite had drawn my attention to the cross examination of the respondent No.1 where the respondent No.1 had to admit that large number of dues in connection with the business of the restaurant were outstanding such as the liquor charges and electricity charges. I am not referring to the actual figures as it may not be relevant and necessary. According to Mr. Mohite the impugned cheque dated 18.9.1993 was given on the basis of the solemn statement affirmed in the affidavit dated 10.8.1993 i.e. all the dues have been paid and there is nothing outstanding. Ld. Advocate Mr. Mohite submitted that if the respondent No.1 had admitted in the cross examination that all the dues were not cleared then the respondent No.1 was not entitled to receive the sum of Rs.1,00,000/- and when it came to the knowledge of the applicant that all the dues were not settled, he had no alternative but to stop the payment of the impugned cheque and that is how the impugned cheque was dishonoured. According to learned Advocate Mr. Mohite the applicant was justified in stopping the clearance of the cheque -6- because the promise given by the respondent No.1 about the payment of the liabilities was breached and to that extent the applicant has discharged the burden cast on him as regards issuance of the impugned cheque. Learned Advocate Mr. Mohite in support of his submissions has taken me through the evidence of the respondent No.1 and that of himself and he submitted that the applicant having discharged the burden the view taken by the courts below so as to convict the applicant under Section 138 of the Negotiable Instruments Act was erroneous and that it was necessary for both the courts to accept the defence of the applicant and acquit the applicant. Mr. Mohite had therefore submitted that taking into consideration the stand of the applicant this court should accept the defence of the applicant and acquit him of the charge under Section 138 of the Negotiable Instruments Act. Mr. Mohite had at the end of his argument submitted that if this court comes to the conclusion that the applicant has not discharged the burden as required in accordance with the provisions of the Negotiable Instruments Act, the applicant be not sent to the jail and that the applicant be subjected to punishment of payment of fine, particularly because -7- the applicant was required to repay the substantial amount of dues which the respondent No.1 had incurred. 8. Since there was nobody to oppose the application, I have considered the entire record. It is true that in the affidavit at Exhibit 47 there is a statement that all the dues have been cleared. It is required to be mentioned that the applicant has admitted that the impugned cheque of Rs.1,00,000/- was returned to the respondent no.1 towards the repayment of the security deposit. This will mean that the applicant admits that in the normal course of business the applicant was liable to return to the respondent No.1 the security deposit. It is true that in the affidavit, it is mentioned that all the dues have been cleared and in fact the dues were not cleared as is manifest on the basis of the cross examination of the respondent No.1., but then the question is whether the impugned cheque was given subject to the satisfaction of all the liabilities by the respondent No.1 and the answer is in the negative. In my view when the applicant delivered the cheque of Rs.1,00,000/- at the relevant time it -8- was easily possible for the applicant to verify as to whether all the dues with regard to the hotel business have been cleared and in any case it would have been possible for the applicant to deliver the cheque to the respondent No.1 by putting up the condition that in case some dues are found to be payable by the respondent no.1 he would have every right to withhold the payment of Rs.1,00,000/-. The record shows that the respondent No.1 made a declaration that dues have been cleared. The petitioner has not been able to place before the Court any material on the basis of which it can be said that the said cheque was delivered by the respondent No.1 subject to the respondent No.1 clearing the dues. It is one thing that the cheque was given subject to the respondent No.1 clearing the dues and the cheque being given simplicitor. The applicant has not come out with the consistent defence. It is required to be mentioned that the applicant received statutory notice dated 19.1.1994 and the applicant sent the reply dated 18.2.1994 at Exhibit 37. It is peculiar to note that in this reply dated 18.2.1994 the applicant has denied the fact of having received the sum of Rs.50,000/- from the respondent No.1. The entire reply to the -9- notice is in the nature of denial. Then comes the cross examination of the respondent No.1 wherein it was sought to be suggested to the respondent No.1 that the cheque was issued subject to the clearance of all the liabilities outstanding against the applicant. This suggestion has been vehemently denied. This suggestion having been given to the respondent No.1 it was clear that the cheque was given to the respondent No.1 by the petitioner on condition that all the liabilities are cleared. If this be so, there is no reference to such statement in the affidavit. In the normal course, the petitioner could have inserted the clause accordingly. The suggestion was given to the respondent No.1 about the post dated cheque and the respondent No.1 has admitted that the cheque was given by way of post dated cheque and has further denied that it was given subject to the clearance of liability. Further suggestion was given to the respondent No.1 that he was asked to clear all the dues and thereafter present cheque for encashment. This suggestion has also been denied. As a result of this it is clear that all suggestions given to the respondent No.1 forming a part of the defence were specifically denied by the respondent No.1. -10- In the normal course when the applicant stepped into the witness box these facts should have been the foundation of his evidence. However, it is not so. In the evidence the applicant has come out with a completely different case and it is stated by the applicant that he delivered the cheque of Rs.1,50,000/- is false. He came out with a case that the complainant had demanded the cheque of Rs.1,50,000/- for showing to some other person and assured him that he would not deposit the cheque in the bank for encashment. It is strange to note that this defence has been put by the applicant in the examination in chief and a totally new case is made out. No doubt in the examination in chief of the applicant, the suggestions which were put to the respondent No.1 in the cross examination have not figured. Suggestion was given by the respondent No.1 to the applicant that on the execution of the affidavit at exhibit 43 all dues were settled and therefore he accepted the affidavit, was denied by the applicant. Similar suggestion as regards the settlement of the account also came to be denied. Similarly issuance of the cheque of Rs.1,00,000/- came to be delivered after the settlement of account also came to be denied. -11- Then comes the last stage i.e. regarding statement of the applicant under Section 313 of Cr.P.C. Here the applicant has come out with yet another story viz. that there was raid of anti corruption and the complainant ran away from the spot thereafter asked him to issue the cheque of Rs.1,50,000/- and further assured him that he would meet soon and further assured him that he would not deposit the cheque unless the matter is settled by talks. This will equally go to show that the applicant did not approach the court with consistent defence. 9. Keeping in view the various defences which were put up by the applicant at different stages, I am inclined to observe that the applicant has not discharged the burden as was required in terms of the judgment delivered by the Honourable Supreme Court in Case of M.S.Narayana Menon @ State of Kerala & Another. Ld. Advocate Mr. Mohite had submitted that it is open for the accused to put up alternative defence. One cannot dispute such proposition. But it is required to be noted that alternative defence will have to be put at same stage and it can’t be that the new defence can be put up at different stages. All this goes to show -12- that the defence put up by the accused cannot be considered as acceptable one so as to say that he has discharged the burden. In view of the aforesaid discussion, I am inclined to observe that the applicant has failed to discharge the burden and the requirements of the provisions of Section 138 of the Negotiable Instruments Act have been fulfilled. 10. After having gone through the judgment delivered by the learned Judicial Magistrate First Class as well as the judgment delivered by the learned Addl. Sessions Judge, and on the basis of the observations as made aforesaid, I am inclined to observe that no interference is required in so far as the ultimate finding as regarding conviction of the applicant under Section 138 of the Negotiable Instruments Act. 11. I now turn to the question as regards the punishment to be imposed upon the applicant under Section 138 of the Negotiable Instruments Act. Keeping in view the provisions of Section 138 as also the submissions advanced across the bar I am of the view that the respondent No.1 has not -13- received any amount which the respondent No.1 was otherwise entitled to receive as against the impugned cheque. The applicant has been sentenced to suffer rigorous imprisonment for a period of one year and fine of Rs.5000/- is imposed. In the judgment delivered by the learned Judicial Magistrate, First Class, there is no provision for payment of any amount from out of the fine amount which was ordered to be deposited. 12. In my view, the applicant having being found liable to pay the sum of Rs.1,00,000/- to the respondent, instead of sentencing the applicant to undergo imprisonment, it would be convenient to impose punishment of fine simplicitor and further to see that out of the fine amount a substantial amount is paid to the respondent No.1 by way of compensation so that the interest of justice would be met with. Keeping in view the fact that the impugned cheque was issued for Rs.1,00,000/-, I am inclined to fix the fine amount at Rs.1,25,000/- and further direct that out of the fine of Rs.1,25,000/- , the sum of Rs.1,10,000/- be paid over to the respondent No.1 so that the respondent No.1 would get back the amount which he was -14- otherwise entitled to get. In my view, this arrangement would meet the ends of justice and as such I am inclined to pass an appropriate Order, keeping in view the aforesaid discussion. ORDER . The judgment and Order dated 25.9.1998 delivered by the 9th Joint Judicial Magistrate, First Class, Thane which has been confirmed by the learned 4th Addl. Sessions Judge, Thane in Criminal Appeal No.66 of 1998, convicting the applicant under Section 138 of the Negotiable Instruments Act is hereby confirmed. Accordingly the applicant stands convicted under Section 138 of the Negotiable Instruments Act. . The Order passed by the 9th Joint Judicial Magistrate, First Class, Thane and confirmed by the 4th Addl. Sessions Judge, Thane, thereby directing the applicant to undergo imprisonment for one year and to pay fine of Rs.5000/- and to undergo simple imprisonment for three months in default of payment of fine is set aside and in its place following order by way of punishment is imposed, i.e. to say -15- It is ordered that the applicant is sentenced to pay the fine of Rs.1,25,000/- (Rupees One Lakh Twenty five Thousand Only). . The applicant shall deposit the fine amount of Rs.1,25,000/- in the Court of 9th Jt. Civil JMFC, Thane. Upon depositing the fine amount of Rs.1,25,000/- as aforesaid the 9th Joint Civil Judge Junior Division and the Judicial Magistrate First Class, Thane shall pay to respondent the sum of Rs.1,10,000/- and the rest of the amount of Rs.15,000/- shall be credited to the State of Maharashtra. . If the applicant has deposited the fine amount of Rs.5000/- as ordered by the 9th Joint Civil Judge, Junior Division, JMFC, Thane, credit to that extent will be given to the applicant and in that case the applicant will be liable to deposit the sum of Rs.1,20,000/- pursuant to this Order. The applicant shall deposit the fine amount on or before 19-7-2008. . If the applicant fails to deposit the fine amount as aforesaid, he shall surrender his bail -16- and in that case the learned 9th Joint Civil Judge, Junior Division, JMFC, Thane shall issue non bailable warrant against the applicant for his arrest and that the applicant shall undergo simple imprisonment for one year. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)