1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL REVISION APPLICATION NO.350 OF 2008 Sumatilal Ratanchand Shah ...Applicant Vs. Narayan Sayanna Pota & Ors. ...Respondents Mr.V.V.Purwant, Advocate for the Applicant Mr.Ganesh Bhujbal i/b. Prakash Naik, Advocate for Respondents 1 to 3 Mr.S.R.Shinde, A.P.P for the State CORAM: SMT.ROSHAN DALVI, J. DATED: 21ST NOVEMBER, 2009 P.C. 1.This Revision Application is filed by the applicant against the order of the learned J.M.F.C, Pune convicting the accused/applicant and sentencing him to Simple Imprisonment for one year and to pay compensation of Rs.10,000/- within 30 days from the date of the judgment and thereafter, the order in the criminal Appeal No.179/2006 before the Sessions Judge, 8 th Court, Pune dismissing the Appeal on 8 th May 2008. Hence there are two concurrent findings of fact against the applicant. The ambit of this Revision Appliction is extremely narrow. 2 2.The criminal prosecution is under Section 138 of the Negotiable Instrument Act. The complainant claims that he gave a loan of Rs.4,50,000/- to the accused in cash on 14 th October 1998 towards which the accused issued a receipt which came to be signed by the accused as well as the complainant and for payment of which the accused issued a cheque on 14 th October 1998, which came to be dishonoured on 23 rd February 1999. 3.The applicant/accused has admitted the issue of the dishonoured cheque. He has not denied the issue of the receipt. The reason for issuing that cheque is that the complainant wanted to show it to his Banker to avail a loan. 4.The learned J.M.F.C has specifically considered this aspect thus: Throughout the cross-examination of the complainant the accused not whispered a single word about execution of the said receipt. Nowhere the accused either denied execution of the receipt at Exhibit-24 nor his signature on it. So also the accused admitted issuance of the cheque and his signature on it. This is not the case of the accused that the disputed cheque was a blank signed cheque and the complainant has misused it. 3 5.The parties are friends. The loan which is given is stated to be a friendly loan. The accused was stated to be in need of money. The loan is given in cash without interest. The cross examination of the complainant s son after the complainant s death itself makes out a case that the parties had no business relations at the time of the transaction. 6.The learned J.M.F.C as well as the learned Sessions Judge have considered the defence of the reason for the cheque stated to be given to show the bank from which the complainant was to take a loan. This defence has been rejected as untrue. It will have to be seen whether that rejection is proper. The cheque is issued in October 1998. If it was to be shown to the banker the loan would have been got within a reasonable time thereafter. The purpose of issuance of the cheque could have been seen within a reasonable time thereafter. The accused has not shown that he demanded the return of the cheque after the complainant s work was done. He has also not shown any inquiries made in respect of the cheque as to how it was used by the complainant in his bank, or whether it was taken by the Bank. The cheque was issued on 14 th October 1998 and has been deposited in February 1999. The defence, therefore, is seen to be moonshine. 4 7.The execution of the cheque is admitted. The reason for executing the cheque is seen to be untrue. Hence, the statutory presumption does not get rebutted. The onus does not shift on the complainant to prove the debt upon the cheque. 8.It is contended on behalf of the accused that the complainant must show the legally enforceable debt. 9.That is a part of the law relating to the dishonour of cheques under which the statutory presumption is rebutted. If the presumption is rebutted, it would be for the complainant to show the enforceable debt upon which the cheque was issued. In this case the execution of the cheque is admitted and the presumption there under is not rebutted. 10.In the judgment relied upon by the Advocate for the accused in the case of Sanjay Mishra Vs. Kanishka Kapoor @ Nikki 2009(5) Bom.C.R. 464 the cheque was issued to a lady as a friendly loan. She was not known to the complainant. She was introduced to the complainant through one Mrs. Kalyani Singh, who was known to the complainant. She was stated to be in need of financial assistance. She was advanced a large amount of Rs.15 lakhs in cash. She executed a Hundi and 5 a cheque thereupon. The cheque was dishonoured. She disputed the signing of the cheque itself. Hence, the entire transaction made out by the complainant was seen to be suspect. In that case it was sought to be seen as to how the complainant advanced the large amount in cash to be given as loan to a stranger. The evidence showed that the entire amount was unaccounted. Though the complainant was income tax payer the amount was not shown in his tax returns. It was stated to be given in cash kept in the complainant s residence. It was held that when the execution of the cheque itself is disputed the complainant must show the legally enforceable debt since it was unaccounted amount not shown in his income tax returns, it would not show it was a legal debt or liability. That case is on completely different footing since it proceeds upon the denial of the execution of the cheque itself, and hence the denial of the entire transaction. 11.In this case the admission of the execution of the cheque coupled with the non-denial of execution of the receipt and the act of the accused in not inquiring about the cheque which was given by him or calling for its return are the strongest circumstances against the case of denial of the receipt of consideration. The presumption itself is not rebutted and hence the onus is not shifted. The judgment of both the J.M.F.C., and 6 Sessions Court in Appeal, therefore, do not call for interference. There is no material irregularity. The sentence upon the accused upon conviction is seen to be correctly imposed and must be suffered by him. 12.It may be mentioned that the parties have been involved in a civil litigation. A Civil Suit has been filed. The heirs of the original complainant have prosecuted that suit also. The parties have desired to settle. The applicant/accused did not remain present in Court. Time was sought, which was refused since on a number of occasions earlier time was granted for settlement of the dispute. Since 20 th February 2009 the Revision Application was adjourned on 6/3/2009, 9/4/2009, 20/4/2009, 28/4/2009, 10/6/2009, 24/6/2009, 14/7/2009, 4/8/2009, 7/9/2009, 5/10/2009, 9/10/2009, 7/10/2009 and 9/11/2009. On 13 th November 2009 son of the applicant/accused who is stated to be serving at J.J. Hospital, Mumbai attended and the parties were negotiating settlement in the Court itself. The amount was to be paid as per the negotiation. The negotiation itself came to be recorded. Despite that no amount was paid and hence, yesterday when the matter reached hearing the Criminal Revision Application was kept for hearing today upon the request of the Advocate for the applicant to get prepared. 7 13.The accused was present in Court yesterday since the amount was not paid as per the negotiation. The Criminal Revision Application was kept today for hearing the parties on merits. The accused is absent. His son is present. 14.The Advocate for the accused is heard. Before the arguments could be heard the son of the accused tendered xerox copies of certain medical papers showing certain medical reports of the accused which are dated 19/2/2001, 11/9/2001, 29/10/2001, 25/1/2009 and then a certificate for treatment for gallstones and the need for a surgical operation issued on 13/7/2009 with a report of the abdomen of the accused. 15.The documents are entirely irrelevant to consider the liability under the dishonoured cheque. What medical treatment the accused may have gone through in the year 2001 is completely irrelevant. What certificate he obtained from his medical authorities four months ago or his report of abdomen is of no concern to the Court in determining his defence upon his dishonoured cheque. The accused, even without requirement of attending the Court, has been represented not only by his Advocate, but also by his son. 16.No case on merits is shown. Both the judgments of 8 lower Courts do not suffer from any infirmity. 17.The Revision Application is dismissed. 18.The accused will be taken in custody to serve the sentence. 19.The complainant shall be entitled to withdraw Rs. 10,000/- which is directed to be paid as compensation and which has been deposited in this Court. (SMT. ROSHAN DALVI, J.)