1 cri.revn.no.39 of 2011 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL REVISION APPLICATION NO. 39 OF 2011 Mr. Javed Ahmed Mohammed Tauhid Shaikh... Applicant Versus The State of Maharashtra and Ors. ... Respondents Mr. R.A. Shaikh, Advocate for the applicant. Ms. Pravina Kanani for respondent no. 1. Mrs. M.R. Tidke, A.P.P. for State. CORAM : SMT. R.P. SONDURBALDOTA,J. DATED : FEBRUARY 08, 2011 P.C. 1. This is a revision application preferred against the concurrent findings of fact and law recorded by the trial court and appellate court. 2. The applicant has been convicted of the offences punishable under section 138 of Negotiable Instruments Act, by the trial court by its judgment and order dated 11th November, 2009 and has been sentenced to suffer simple imprisonment for three months and to pay fine of Rs.30,53,000/- and in default of payment of the fine amount, 2 cri.revn.no.39 of 2011 he has to suffer simple imprison for one month. Out of the fine amount of Rs.30,50,000/- is to be given to the respondent, original complainant, by way of compensation. The applicant challenged his conviction by preferring appeal to the Sessions Court being Criminal Appeal No. 8 of 2010 which came to be dismissed by the Sessions Court by its judgment and order dated 11th January, 2011. Both the courts have held that respondent no.1 has established that the applicant had issued cheque to him in discharge of legally enforceable debt which cheque when presented for payment was dishonoured. Respondent no. 1 then had sent statutory notice to the applicant, the requisition wherein had not been complied with. 3. The defence taken by the applicant before the trial court was reiterated in the appeal proceedings. It was contended that the amount of loan had in fact been given to one Mitiur Rehman and the applicant was a guarantor for the same. Also the cheque in question was a blank cheque given as security towards repayment of the amount. It was further contended that the statutory notice was never served upon the applicant. Both the courts rejected the defence in view of clear admission on the part of the applicant that he had received sum of Rs. 30 lacs. from respondent no. 1 by way of loan 3 cri.revn.no.39 of 2011 and had issued cheuqe in the sum of Rs. 30 lacs. towards discharge of legal liability of repayment of loan. 4. Mr. Shaikh, the learned counsel for the applicant submits that even if it is to be accepted that the applicant had admitted receipt of amount of Rs. 30 lacs. from respondent no. 1, the proceedings filed by respondent no. 1 was an attempt at money laundering. He argues relying upon the decision of the Apex Court in Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, (2008) 4 S.C..C. 54 that the courts below have failed to notice that ordinarily in terms of section 269-SS of Income Tax Act any advance by way of loan of amount more than Rs. 20,000/-, ought to be made by cheque only. He submits that in the present case, there is no evidence that the loan of Rs. 30 lacs. was given by way of cheque. This defence of fact can not be allowed to be raised for the first time in the revision application. Besides the learned counsel for respondent no. 1 has pointed out that while cross examining the applicant, he was asked whether he is income tax payer and whether he maintains the income tax account. Thereafter the applicant was apparently content with the answer given and did not pursue the question further. He never called upon respondent to produce his books of accounts nor 4 cri.revn.no.39 of 2011 returns of income tax filed. 5. By the present proceedings, the applicant is invoking in revisional jurisdiction of this court. The revisional power being extra ordinary power must be exercised by this court with circumspection. It cannot be equated with the power of an appellate court. Therefore, ordinarily it would be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the very evidence that has been appreciated by the Magistrate as well as the Sessions Court in appeal. In order to interfere with the concurrent findings there must exist some glaring feature that would be tantamount to gross miscarriage of justice. The Apex Court in its decision in State of Orissa Vs. Nakula Sahu and Ors. reported in (1979) 1 SCC Page 283 relied upon by the respondent has held : "9. So far as the first point is concerned, it is to be emphasized that although the revisional power of the High Court under section 439 read with section 435 of the Code of Criminal Procedure, 1898 is as wide as the power of Court of Appeal under section 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under section 439 5 cri.revn.no.39 of 2011 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a mainfest error on a point of law which has consequently resulted in flagrant miscarriage of justice." 6. Perusal of the judgments of the courts below show that the concurrent findings of fact arrived by them is on a proper appreciation of evidence. Hence, the revision application is dismissed. 4. In view of the dismissal of the revision application, the application for bail does not survive, the same stands dismissed. [Judge]