1 mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLN NO.21 of 2008 Vishnu Atmaram Patil .. Applicant versus Mahesh Shamrao Patil & Anr. .. Respondents ... Mr.Sameer S. Tambekar for the applicant. Mr.Rajesh More APP for the State. CORAM : D.G.KARNIK, J DATED : 25th January 2008 P.C.: 1. Heard learned counsel for the applicant and learned APP for the State. 2. By this revision application, the applicant takes exception to the judgement and order dated 15th November 2007 passed by the Addl. Sessions Judge, Ichalkaranji in Criminal Appeal no.18 of 2007. By that judgement, the learned Sessions Judge confirmed 2 the decision of the Judicial Magistrate no.4, First class, Ichalkaranji dated 28th August 2007 convicting the applicant for an offence punishable u/s.138 of the Negotiable Instruments Act and sentencing him to suffer rigorous imprisonment for four months and fine of Rs.56,000/- and in default to suffer further rigorous imprisonment for a period of one month. 3. The prosecution case is that towards discharge of part liability the revision applicant issued to the respondent no.1 a cheque of Rs.50,000/- dated 15th September 2006 drawn on Bank of India, Rukdi Branch. The respondent no.1 deposited the said cheque in his account on 17th February 2005, which was returned unpaid by the applicant’s bank with the endorsement "insufficient funds". Respondent no.1, therefore, by advocate’s notice dated 14th October 2005 demanded payment. The notice was received by the applicant but he failed and neglected to make the payment within the statutory period of 15 days of the receipt of the notice. Respondent no.1 therefore filed a complaint before the Judicial Magistrate, First Class on 22nd November 2005. Charge was framed on 24th October 2007 and the hearing was commenced on 25th February 2007. Revision Applicant remained absent and was therefore produced before the court on a warrant. After the prosecution evidence was over 3 statement of the applicant u/s.313 of the Code of Criminal Procedure on 7th May 2007. Therein the applicant stated that he wanted to adduce evidence in defence. However, he did not lead any evidence in defence and went on applying for adjournments day after day. Finally, the adjournment was refused and the applicant was convicted by the learned Magistrate by his order dated 28th August 2007. The appeal of the revision applicant was dismissed by the Sessions Judge on 15th November 2007. That order is impugned in this revision application. 4. Learned counsel for the applicant urged two points before me. He firstly submitted that appropriate opportunity of adducing evidence in defence was not furnished to the applicant resulting into miscarriage of justice. The order of conviction and sentence should therefore be set aside. He invited my attention to paragraph no.7 of the decision of the Sessions Court and submitted that the dates mentioned therein clearly disclose that the applicant was not given appropriate opportunity of adducing evidence. On 23rd April 2007 after conclusion of examination in chief of the respondent no.1 the applicant declined to cross-examine him. The respondent no.1 thereupon closes his evidence and the matter was adjourned to 7th May 2007 for 4 recording of the statement of the applicant. The statement of the applicant under section 313 of the Code of Criminal Procedure was recorded on 7th May 2007 wherein he stated he wanted to adduce evidence in defence. The matter was adjourned to 28.5.07 but the applicant was absent on that day. The matter was adjourned to 29.5.07 when the applicant applied for adjournment and the matter was adjourned to 7.6.2007. On 7.6.07, the applicant again applied for adjournment. The application was granted and matter was adjourned to 25.6.2007. On that day, the applicant again applied for adjournment and the Court granted the said application observing that the application was granted by way of a last chance and the matter was adjourned to 17.7.2007. Despite the order dated 25.6.2007 that the matter was adjourned to 17.7.2007 by way of a last chance, the applicant again asked for adjournment on 17.7.2007. The court again was indulgent and granted an adjournment upto 23.7.2007 when the applicant remained absent. He also remained absent on the next date i.e. 2.8.2007 when arrest warrant was issued against him and applicant was arrested and brought before the court. He was granted bail and thereafter the matter was decided on 28.8.2007. These dates clearly disclose that the applicant was given sufficient opportunity of adducing his evidence. In fact, the matter was 5 adjourned at his request. The matter was adjourned on several occasions i.e. on 28.5.07, 29.5.07, 7.6.07, 25.6.07, 17.7.07, 23.7.07 and 7.8.07. It therefore cannot be said that the applicant was not given sufficient opportunity for adducing his evidence in defence. 5. Secondly, learned counsel for the applicant submitted that the cheque of Rs.50,000/- was issued without any consideration and there was no pre-existing liability. Section 118 of the Negotiable Instruments Act raises a rebuttal presumption of consideration. The burden of proving absence of consideration and absence of pre-existing liability was therefore on the applicant. The applicant did not discharge the said burden. There is therefore no merit in the contention that there was no pre-existing liability. 6. No other point was urged. 7. There is no merit in the revision application which is hereby rejected summarily. (D.G. KARNIK, J)