1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL REVISION APPLICATION NO.173 OF 2010 WITH CRIMINAL APPLICATION NO.73 OF 2010 In CRIMINAL REVISION APPLICATION NO.173 OF 2010 Jhaverilal Mishrimal Goyal @ Jain : Applicant (Orig.Appellant/Orig.Accused) V/s. The State of Maharashtra & Anr. : Respondents .... Mr.Vijay Pradhan, Senior Advocate, with Ms Nita Solanki i/b. Kiran Jain & Co., for the applicant. Mrs.A.S. Pai, Addl. Public Prosecutor for respondent no.1. Mr.Niteen Pradhan with Ms S.D.Khot and Ameeta Kuttikrishnan for respondent no.2. ... CORAM : B.R. GAVAI, J. DATE : APRIL 12, 2010. P.C.: By way of the present Revision Application, the applicant challenges the concurrent orders passed by the learned Metropolitan Magistrate’s 7th Court, Dadar, Mumbai, dated 26.9.2008 thereby convicting the applicant for the offence punishable under section 138 of the Negotiable Instruments Act and sentencing him to suffer Simple 2 Imprisonment for one year and to pay a fine of Rs.14,50,000/- and the order passed by the learned 3rd Ad-hoc Addl. Sessions Judge, Sewree, Mumbai, dated 9.2.2010 thereby dismissing the appeal filed by the present applicant. 2. A complaint came to be filed by the respondent no.2 herein alleging that the accused had taken a personal loan from him of an amount of Rs.10 lakhs and that it was agreed that the said loan would be repaid after two years with interest of Rs.3 lakhs. It is the case of the complainant that thus an amount of Rs.13 lakhs was to be paid to the complainant-accused after a period of two years. It is further the case of the complainant that three post-dated cheques were issued in favour of the complainant for discharge of the aforesaid legal liability. The cheques were presented by the complainant. The said cheques were dishonoured. Notice was issued under the provisions of section 138. It was duly replied by the accused. Upon non-compliance of the notice, the complainant filed proceedings under section 138. The order of sentence as referred to hereinabove was passed by the learned trial Court. The appeal there against was also dismissed. 3. Mr.Vijay Pradhan, the learned counsel appearing on behalf of the applicant, submits that the order passed by both the Courts below are 3 perverse and, therefore, an interference is warranted by this Court in its extraordinary jurisdiction. He submitted that both the Courts have failed to take into consideration that the complainant was a moneylender and since he had failed to produce the licence on record, in view of the provisions of the Bombay Moneylenders’ Act, 1946, the proceedings under section 138 were not tenable. The learned counsel relied on the judgement of the learned single Judge of this Court in Criminal Application No.630 of 2009 in Criminal Appeal (Stamp) No.139 of 2009 dated 21.11.2009 delivered at Aurangabad Bench of this Court. 4. Mr.Pradhan further submits that both the Courts have failed to take into consideration that the cheques were given by way of security. He submits that there was an agreement between the brothers of the accused and the complainant and his family members and that the said agreement was duly exhibited as D-1. He, therefore, submits that since the document regarding the settlement between the parties was exhibited, the burden shifted on the complainant. He submitted that this aspect has not been taken into consideration by both the Courts thereby resulting into perversity. It is the submission of the learned senior counsel that on the accused establishing prima facie that the cheques were by way of a security, the burden shirted upon the complainant to disprove the same. 4 5. Mr.Niteen Pradhan, the learned counsel appearing on behalf of the respondent no.2-complainant, on the contrary, submits that both the Courts after carefully appreciating the evidence found that the complainant had established his case beyond reasonable doubt as required under section 138 of the Act and, therefore, no interference is warranted. 6. Though the matter is at the stage of admission, the Court has heard the learned counsel at length and has also gone through the entire evidence which the learned senior counsel wanted this Court to read. 7. Insofar as the first contention of the learned counsel for the applicant regarding the proceedings being not tenable on the ground that the complainant is a moneylender is concerned, the learned senior counsel strenuously relied on the admission given by the complainant in his evidence. The learned counsel also relied on the stand taken by the complainant that the complainant would not produce the moneylender’s licence on record. 8. Evidence of a party cannot be read into peace-meal. The Court will have to considerer the evidence of a party in its entirety. From the evidence of the complainant, it would reveal that it was the specific stand that he is engaged in money-lending business and the transaction in 5 question was not part of his money lending business. It is his specific evidence that the parties are known to each other and, therefore, he had given a hand loan to the accused. It was his specific case that he had taken a loan of Rs.10 lakhs from one Mr.Ashokkumar Nahar and his wife Mrs.Pushpa Nahar. It is the case of the complainant that this amount was given as a hand loan to the accused. It is to be noted that income-tax return along with the balance-sheet of the complainant was duly exhibited as exh.43. The said document was exhibited by the learned trial Court after considering the say given by the accused on the application filed by the complainant. It has been found by both the Courts below that the income-tax return along with the balance-sheet specifically show that the complainant had taken a loan of Rs.10 lakhs from Mr.Ashokkumar Nahar and his wife Mrs.Pushpa Nahar. It has been concurrently found by the Courts below that the balance-sheet shows that the hand loan of Rs.10 lakhs was advanced by the complainant to the accused. It can thus clearly be seen that the complainant could establish that the transaction in question was not a part of his money lending business. 9. Insofar as the judgement on which the learned counsel strenuously relies is concerned, it can be seen that in the said case, the complainant had failed to prove as to how he had arranged for an amount of Rs.4 lakhs which was allegedly given to the accused. It was also found by the Court 6 that the total income of the complainant for the relevant period was Rs. 60,000/- and Rs.57,000/-, respectively. In the said case, the complainant also failed to produce the income-tax returns so as to substantiate his claim that there was a liability enforceable in law. Such is not the case here. In the present case, the complainant has duly proved his income-tax returns and balance-sheet and corroborated his ocular testimony. 10. In that view of the matter, I do not find much force in the submission made on behalf of the applicant that the transaction in question is a money lending transaction and, therefore, the complaint was not tenable. 11. Insofar as the second ground of the applicant is concerned, the trial Court in paragraphs 10 and 11 of its judgement and the appellate Court in paragraphs 30, 31, 32, 33 and 34 of the judgment have elaborately discussed as to how the defence of the accused in this respect is without any substance. The learned trial Court has found that the evidence of the defence witness no.2 Mr.Ashokkumar Jain and defence witness no.3 Mr.Ambalal Pukhraj Jain was contradictory on this aspect. 12. The learned appellate Court, on the basis of the judgement of the apex Court in Kusum Ingots & Alloys Ltd. v. M/s.Pennar Petereon 7 Securities Ltd. and others (AIR 2000 SC 954) has set out five requirements which are required to prove a case under section 138. It was found that all the five requirements were duly proved by the complainant. Insofar as the defence of the accused is concerned, it was found that the cheque numbers were not mentioned in the agreement at exh.E-1. The learned appellate Court, on the basis of the judgment of this Court, has found that the accused has failed to discharge the burden as required to be discharged by him before shifting the burden on the complainant. It has been found that the accused had nowhere stated that the main loan was repaid by him and thus the security could not be enforced. 13. The scope of interference in concurrent finding is limited, unless it is found that the findings of the Courts below are perverse or impossible, it will not be permissible for this Court to upset the same, sitting in revisional jurisdiciton. Leave aside the finding being either perverse or impossible, I am of the considered view that both the Courts below have correctly appreciated the evidence and applied the law correctly. 14. In that view of the matter, no case is made out for interference. Criminal Revision Application is dismissed. 8 15. In view of the dismissal of the Revision Application, Criminal Application no.73 of 2010 does not survive and the same stands disposed of. 16. At this stage, Mr.Vijay Pradhan, the learned senior counsel appearing on behalf of the applicant, prays for suspension of the sentence for a period of eight weeks so as to enable the applicant to approach the Supreme Court. The said prayer is vehemently opposed by Mr.Niteen Pradhan, the learned counsel appearing for the respondent no.2. However, taking into consideration the facts and circumstances of the case, I am inclined to suspend the sentence for a period of four weeks from today. Order accordingly. B. R. GAVAI, J.