IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. REVN.APPLICATION NO.202 OF 2007 In Cri. Appeal No.111 of 2006 1. M/s Shrirang Agrochem Pvt. Ltd. 2. Mr.K.S.K.Shetty 3. Mrs Surja Satish Kumar Shetty ... Applicants v/s 1. State of Maharashtra 2. Mr.Jayesh Shah ... Respondents Mr.K.R.Tiwari for the Applicants Mr.J.A.Uddipuri for Respondent no.2 Mr.J.P.Yagnik APP for Respondent no.1 CORAM : V.C.DAGA,J. DATED : 3rd July 2008 P.C.:- 1. This revision application is directed against the order dated 2nd April 2007 passed in Criminal Appeal No.111 of 2006 passed by the Ad Hoc Additional Sessions Judge, Gr.Bombay at Sewree rejecting the appeal challenging the order of conviction dated 5-5-2006 passed in C.C. No.1288/S/2003 convicting the Appellant for having committed an offence punishable under Section 138 of Negotiable Instruments Act (NI Act). - 2 - FACTUAL MATRIX 2. The factual matrix reveals that the Appellant no.1 company borrowed on 3-9-1999 short term loan from one M/s J.Manubhai and Company in the sum of Rs.4 lac and 2 lac total amounting to Rs.6 lac through financial broker one Mr.Ramchandra G. Chabbaria. 3. By way of financial accommodation two bills of exchange one dated 3-9-1999 for Rs.4 lac and another for Rs.2 lac (without any date) were signed by the accused acknowledging receipt of Rs.4 lac plus Rs.2 lac total Rs.6 lac from M/s J.Manubhai and Co. One letter of acknowledgment dated 2-9-1999 was also handed over to the complainant M/s J.Manubhai and Co. under the seal of accused no.1 company duly signed by accused no.2 wherein amount of Rs. 6 lac was acknowledged. It appears that one cheque dated 17-10-1999 was given to the complainant along with the said letter. As per the complainant amount of Rs.6 lac was paid to the accused by a cheque drawn on Bank of Baroda dated 2-9-1999. The date of the said cheque is specifically mentioned in the said letter dated 2-9-1999. 4. The complainant has stated that in discharges of liability the accused have issued two fresh cheques dated 1-8-2002 one for Rs.4 lac and another for Rs.2 lac. Both the said cheques were put for encashment. They were - 3 - returned unpaid for want of funds. The notice under Section 138 of NI was issued which remained to be complied with. With the result the complainant was required to file complaint under Section 138 of the N.I. Act to prosecute the applicants. 5. The trial Court tried the Criminal complaint and convicted the accused after recording evidence and by reasoned order. The said order stands confirmed by the lower appellate Court. 6. Being aggrieved by the aforesaid order the present revision application is filed by invoking revisional jurisdiction of this Hon’ble Court. RIVAL SUBMISSIONS 7. The learned Counsel for the applicant admits that accused no.1 had taken short term loan through one broker Mr.Ramchandra G. Chabbaria since the applicant no.1 was in need of money. Mr.Chabbaria took signature of the applicant no.2 on Bills of Exchange one for Rs.4 lac and another Rs.2 lac respectively. He submits that on blank cheque dated 17-10-1999 was given without putting name and date by way of security along with one covering letter dated 2-9-1999. He further submits that due to financial crises the applicant could not satisfy financial liability within stipulated period. However, according to him, in the month of - 4 - December, 2000, the entire amount was paid to Mr.Chabbaria either by cash or cheque. He further submits that Rs.1,68,000/- were paid to the complainant by one M/s BASP Chemical Products Ltd. on behalf of the accused-applicants. He further submits that he had good relations with Mr.Chabbaria, therefore, he did not obtain acknowledgment of the payment made from time to time. He, thus, submits that there was no existing enforceable liability against the present accused-applicant. The conviction is therefore liable to be set aside. 8. The learned Counsel for the applicant has also filed written submission on record. The summary of which is already extracted hereinabove. 9. Per contra, the learned Counsel appearing for the Respondent submits that both the courts below have recorded concurrent findings of fact about enforceable liability against the present applicant/accused and also recorded a finding that the subject cheques were handed over by the accused in discharge of their liability. He, therefore, submits that this is not a fit case to exercise revisional jurisdiction. 10. The learned Counsel for the Respondent also pressed into the service the judgment and decree passed by this Court against accused in Summary Suit NO.3918 of 2002 wherein the complainant has obtained decree for recovery of - 5 - Rs.6 lac with interest thereon at the rate of 9% p.a. from the date of suit till payment in full and final. He, thus, submits that so far as enforceable debt is concerned, the same has been established in civil suit. He further submits in that suit the defence of repayment of the entire loan was taken by the applicants-accused but they failed to establish the same. This Court in exercise of Original Civil Jurisdiction decided the subject suit recording a categorical finding that the accused/defendants in the suit failed to produce account books showing repayment of loan borrowed by them. In the circumstances, the defence that the loan amount was repaid was held to be sham and fictitious and totally unbelievable. The said judgment has attained finality for want of further challenge. Learned Counsel, thus, submits that present complainant has not only established the existence of recoverable debt but has also established that in discharge of debt the subject cheques were given, which were bounced and in spite of demand the repayments were not made. The learned Counsel for the complainant went a step ahead and submitted that even the decree suffered by by the accused-applicants has not been satisfied by them. He, thus, submits that the present revision application is devoid of any substance and is liable to be dismissed. CONCLUSION: 11. Having heard both the parties, none of the contentions - 6 - advanced by the learned Counsel for the applicant can be accepted. On the face of the decree suffered by the accused- applicants the existence of debt has been established by the complainants beyond doubt. 12. The findings recorded by this Court in Civil Suit while exercising Original Civil Jurisdiction held that accused (defendants in the suit) failed to establish repayments. This categorical finding compels me to reject the submission of repayment of the loan borrowed by the applicants. 13. The concurrent findings of facts of two courts below based on appreciation of facts cannot be disturbed in exercise of revisional jurisdiction as held by the Supreme in the case of State of Maharashtra V/s Jagmohan Singh Kuldip Singh Anand and Ors. 2004 CRI.L.J. 4254. 14. As stated in the case of Hiten P. Dalal v. Bratindranath Banerjee (AIR 2001 SC 3897) the presumption available under Section 139 of the Act provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 of the N.I. Act, in discharge of whole or in part, of any debt or other liability and the effect of this presumption is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the discharge of any liability. The Supreme Court further held that both Sections 138 and - 7 - 139 of the Act required that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn and that it introduced an exception to the general rule as to the burden of proof in criminal cases and shifted the onus on to the accused and such a presumption was a presumption of law, as distinguished from a presumption of fact which described provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduced evidence showing the reasonable possibility of the non existence of the presumed fact. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that it exists. The Supreme Court further observed that the rebuttal does not have to be conclusively established but such evidence must be adduced before the - 8 - Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man. 15. In the case in hand, it is already concluded by both the Courts below that cheques were delivered to the complainant by the accused in discharge of debt and the same were dishonoured. Statutory notice was issued which the accused did not comply with and that the accused have failed to establish repayment of the money borrowed from the complainant. In this back drop no case is made out to interfere with the impugned order passed by the trial Court. In the result the revision application fails. 16. At this stage the learned Counsel for the applicant prayed for stay of the effect and operation of this order so as to enable him to approach the higher court.The said prayer is strongly opposed. No case is made out to stay the effect and operation of the order. The prayer made is rejected. In the result, revision is dismissed. The applicant is directed to surrender before the trial within two weeks from today. JUDGE