* 1 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 597 OF 2007 WITH CRIMINAL REVISION APPLICATION NO. 598 OF 2007 WITH CRIMINAL REVISION APPLICATION NO. 599 OF 2007 Shri. Changdev Rambhau Ghumare ... Applicant V/S. Vijay Rajaram Vidhate & anr. ... Respondents WITH CRIMINAL APPLICATION NO. 44 OF 2010 (for fixing date of hearing & withdrawal of amount) IN CRIMINAL REVISION APPLICATION NO. 599 OF 2007 WITH CRIMINAL APPLICATION NO. 45 OF 2010 (for fixing date of hearing & withdrawal of amount) IN CRIMINAL REVISION APPLICATION NO. 598 OF 2007 WITH CRIMINAL APPLICATION NO. 46 OF 2010 (for fixing date of hearing) IN CRIMINAL REVISION APPLICATION NO. 597 OF 2007 Vijay Rajaram Vidhate .... Applicant V/s. Changdev Rambhau Ghumare & anr. ... Respondents * 2 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 * * * * Mr. A.A. Kumbhakoni, Senior Counsel i/by. Mr. Tushar Sonawane, Advocate for the applicant. Ms. Seema Sarnaik i/by. Mr. Sagar Kasar, Advocate for respondent no.1. Mrs. V.R. Bhosale, APP for State­respondent no.2. CORAM :­ SMT. R.P. SONDURBALDOTA, J. 4th MARCH, 2011. P.C. :­ 1. The above three Revision Applications arise out of concurrent findings of fact and law by the Courts below in convicting the revision applicant of the offences punishable under Sections 138 Negotiable Instruments Act in the 3 complaints filed by respondent no.1. They are being disposed off by this common order since the contentions taken up by the parties in the 3 proceedings are same, the evidence recorded there is common and they have been decided by the common judgment by the trial court, as well as, by the appellate court. 2. Criminal Revision Application No. 597 of 2007 arises out of Criminal Appeal No.45 of 2005 which relates to Summary Criminal Case * 3 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 No. 5217 of 2002, Revision Application No. 598 of 2007 arises out of Criminal Appeal No. 44 of 2005 which relates to Summary Criminal Case No. 2930 of 2002 and Revision Application No. 599 of 2007 arises out of Criminal Appeal No. 43 of 2005 which relates to Summary Criminal Case No.1459 of 2002. The brief statement of facts in the three complaints is given below : 3. Summary Criminal Case No. 1459 of 2002 & 2930 of 2002 : The applicant is a builder and developer by profession. He had entered into the agreement dated 3rd May, 2001 in connection with the agricultural land at Gat no. 2509 of Village­Ozar belonging to Chandrabagabai and 29 others. In connection with the agreement, he gave 2 cheques dated 23rd August, 2001 and 23rd November, 2001 in the sum of Rs.7,60,000/­ and Rs.27,63,000/­ respectively to respondent no.1. Both the cheques on presentment for payment, dishonoured for the reason not arranged for . Respondent no.1 then sent statutory notices “ ” in respect of each cheque to the applicant. The notice in respect of the first cheque was received by the applicant. He, however, neither replied to it nor complied with the requisition contained therein. The statutory notice in respect of the second cheque was refused by the * 4 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 applicant. Thereafter, the above two proceedings came to be filed in respect of the two cheques. Summary Criminal Case No. 5217 of 2002 : In connection with the same transaction as stated above, the applicant gave cheque dated 23rd May, 2002 for the amount of Rs.50,40,000/­ to respondent no.1. The cheque when presented for payment was dishonoured for the reason not arranged for and refer to drawer . “ ” The respondent, then sent the statutory notice to the applicant which was replied to by him, disputing his liability to pay the amount to respondent no.1. Thereafter, the third complaint came to be filed against the applicant. 4. After recording of the plea, a joint request was made to the trial court that since all the 3 cheques were issued in one transaction as per the agreement between the parties in respect of the property at Gat No.2509, common evidence should be recorded in the 3 complaints. Therefore, the trial Court proceeded to record the evidence in common. The complainant examined himself and produced documents relied upon by him. Apart from the cheques and the bank memos, banks receipts and statutory notices, the documents consisted of Memorandum * 5 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 of Understanding (Exhibit­45), agreement dated 3rd May, 2001 (Exhibit­46), acknowledgement receipt (Exhibit­62), certified copy of agreement to sell (Exhibit­57), certified copy of special power of attorney (Exhibit­59), certified copy of general power of attorney (Exhibit­58), certified copy of sale­deed (Exhibit­60) and copy of permission for sale­deed issued by the District Collector, Nashik (Exhibit­50). The applicant, examined himself and produced letter of District Collector regarding Nazrana (Exhibit­45), agreement dated 3rd May, 2001 (Exhibit­49) and reply to notice (Exhibit­51). 5. The trial Court accepted the evidence of respondent no.1 and convicted the applicant in all the three cases for the offence punishable under Section 138 Negotiable Instruments Act. In each case, he is sentenced to suffer simple imprisonment for 6 months and pay fine of Rs.1,200/­ and in default of payment of fine to suffer simple imprisonment for 10 days. The compensation awarded to respondent no. 1 in the 3 cases is of Rs.8,00,000/­, Rs.28,03,000/­ and Rs.50,80,000/­ respectively. The Appeal Court confirmed the findings of the trial Court by holding that all the three cheques had been issued by the applicant to respondent no.1 for discharge of lawful dues and rejecting the claim * 6 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 of the applicant that the cheques were not issued for any consideration. 6. The undisputed facts of the case that can be culled out from the record of the proceeding, particularly the statement of the applicant recorded by the trial Court under Section 313 Criminal Procedure Code, are as follows : . Respondent no.1 is a resident of Nashik and carries on business as Estate Agent. The applicant as a developer, was interested in purchasing agricultural land at Ozar bearing Gat no.2509 (old city survey nos.691, 692, 693, 694 and 695) totally admeasuring 41 hectares and 10 ares owned by Smt. Chandrabagabai Laxman Jadhav and 29 others. The property being of new tenure, it was necessary for the owners to take permission of the Collector for converting it into old tenure. The owners of the property being uneducated persons were facing difficulties in selling the property. Therefore, they approached respondent no.1 who was well acquainted with them, offering to sell the land to him. There was an oral transaction of sale entered into between the owners and respondent no.1, pursuant to which respondent no.1 was to purchase the land and sell the same to third parties, if any, by obtaining necessary permission for sale and doing all the needful * 7 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 required to be done by the owner. Respondent no.1 then negotiated with the applicant for sale of the property. Accordingly, on the instructions of respondent no.1, the owners entered into agreement of sale dated 20th December, 2000 with the applicant. The agreement came to be subsequently registered with the office of the Sub­Registrar on 3rd May, 2001. The owners also executed two powers of attorney in favour of the applicant, one, a general power of attorney and the other special power of attorney for obtaining mandatory permission for execution of sale­deed, both of which are registered with the Sub­ Registar of Assurances. The applicant had entered into Memorandum of Understanding (MOU) dated 11th December, 2000 with respondent no.1 in respect of the transaction of sale. Under the MOU, the total price payable by the applicant for the land was Rs.2,21,00,000/­ out of which a sum of Rs.75,00,000/­ was to be paid to the owners and the balance amount was for respondent no.1. The MOU provided for the amount being paid by the applicant in 10 installments. The applicant, however, failed to pay the amount as per the MOU. He eventually paid part of the amount i.e. Rs.30,00,000/­ in cash to respondent no.1 for which receipt dated 3rd May, 2001 was executed by respondent no.1. * 8 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 Thereafter, he issued four cheques to respondent no.1, three of which when presented for payment were dishonoured leading to the three complaints. 7. The dispute raised by the applicant was that respondent no.1 was only an intermediary in the transaction of sale. According to him, it was decided that the permission for sale of the agricultural land under the new tenure was to be obtained by respondent no.1 and not by him. He also claimed that the cheques issued were for payment of nazrana to be paid to the government for grant of permission for sale. Respondent no.1 failed to pay the nazrana amount. It was eventually paid by the applicant himself. After payment of the nazrana amount by the applicant, he stopped the payment on the three cheques, as there was no need for him to make that payment. 8. Mr. Kumbhakoni, the learned senior counsel for the applicant, submits that the facts of the case and the documents relied upon by the parties shows that there was no debt due from the applicant to respondent no.1 as respondent no.1 had failed to complete the work undertaken by him in the agreement with the applicant and pay nazrana for the land. According to him, the documents produced on * 9 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 record rebut the presumption in favour of respondent no.1 under Section 139 Negotiable Instruments Act, that the cheques in question had been issued for discharge of legally enforceable debt or liability. 9. Before proceeding to consider the contentions of the parties, it will be necessary to note and remember that the applicant has invoked revisional jurisdiction of this Court to challenge the concurrent findings of facts proving the guilt of the applicant. The concurrent findings of facts approved by the two courts, if are on proper appreciation of the evidence cannot be challenged in revision. The revisional power of the High Court being extra­ordinary power is required to be exercised with circumspection with due regard to the circumstances of the case. This Court will interfere with the concurrent findings of facts only when there is manifest illegality or perversity in the impugned order. The High Court in revision is not expected to act as if it is hearing an appeal. It is necessary therefore, for the applicant to establish that there has been a miscarriage of justice by the impugned judgment. 10. The three documents which have been relied upon by both the sides are the MOU dated 11th December, 2000 (Exhibit­45) and the agreement dated 3rd May, 2001 (Exhibit­40). The MOU was executed by * 10 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 the applicant in favour of respondent no.1. It refers to the development agreement arrived at between respondent no.1 and the owners of agricultural land at Gat no. 2509 vide vissar pavati dated 29th August, 2000. The MOU states that the agreement between respondent no.1 and the applicant for sale of the land to the applicant for the total consideration of Rs.2,21,00,000/­ out of which sum of Rs.75,00,000/­ was to be paid to the owner as agreed in the development agreement dated 23rd November, 2000 and the balance amount of Rs.1,46,00,000/­ was to be received by respondent no.1. Under the MOU, respondent no.1 had agreed to pay the nazrana amount to the government which was to be deducted from the last installment payable by the applicant. The schedule of payment shows that from 14th December, 2000 to 14th May, 2001 the applicant was to pay Rs.30,00,000/­ by monthly installment of Rs.5,00,000/­ each. Then, on 23rd May, 2001 he was to pay Rs.13,29,000/­ with last two installments of being Rs.50,40,000/­ each. The parties had estimated 6 months as the period for securing permission from the Government and had agreed that there would be no change in the installments even in case of delay in getting the permission. If the permission could be secured earlier, the applicant * 11 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 agreed to pay Rs.45,20,000/­ at the time of sale­deed and the balance amount of Rs.1,00,80,000/­ in two equal installments. Respondent no.1 was to get clear title for the applicant. 11. Because the applicant did not maintain the payment schedule under the MOU, he paid Rs.30,00,000/­ to respondent no.1 for which Visar Pavti dated 3 “ ” rd May, 2001 was executed. On the same day, the applicant executed agreement in favour of respondent no.1 recording following payments to respondent no.1. 1. Cheque no.636816 “ dt. 23­6­2001 Rs. 7,60,000/­ 2. Cheque no.636817 dt. 23­8­2001 Rs. 7,60,000/­ 3. Cheque no.636818 dt. 23­11­2001 Rs.27,63,000/­ 4. Cheuqe no.636819 dt. 23­5­2002 Rs.50,40,000/­ (minus the Nazrana amount)” . By the agreement, the applicant has assured respondent no.1 that the cheques as given would be cleared, except, for the alteration in respect of the nazrana amount and agreed that otherwise the transaction of sale will be treated as cancelled. 12. There is no dispute that respondent no.1 was a intermediary for the transaction of sale of the agricultural land. As already seen above, * 12 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 all the documents relied upon respondent no.1 have been admittedly executed between the parties. It is not the case of the applicant, that there was any defect in the title of the owners. Respondent no.1 had, under the documents executed, taken over the responsibility of clearing all the obstacles in securing clear marketable title to the applicant. The transaction of sale accordingly is also completed. Therefore, it cannot be said that there is no consideration for the cheques issued. Apparently what seems to have happened, is the applicant sidelined respondent no.1 and dealt with the owners directly despite the agreement with respondent no.1. 13. As regards the payment of Nazrana also, I find no substance in the argument advanced on behalf of the applicant. The applicant states that he made an application to the Collector for payment of Nazrana and permission for sale of the land. However, the application made was not for sale of the agricultural land but for non­agricultural land. The applicant, claims to have paid Nazrana of Rs.1,63,96,496/­ to the Government for transfer of the land. But this can never be treated as the Nazrana referred to in the agreements, because, the land being sold was agricultural land and not non­agricultural land. There is no * 13 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 dispute that the Nazrana payable for the sale of agricultural land is a very small amount. Further, amount of Rs.1,63,96,496/­ could not have been deducted ffrom the last payment of Rs.50,40,000/­. The cheque for the last payment can also not be said to be without consideration as the consideration therefor is the transaction of sale. Though the Nazrana amount was to be adjusted against it, that fact does not take away the consideration for the cheque in the facts of this case. This shows that the concurrent findings of fact arrived at by the Courts below is based on proper appreciation of evidence. Such findings cannot be disturbed in revisional jurisdiction. Hence the above three Revision Applications are dismissed. 14. Criminal Applications No. 44 of 2010, 45 of 2010 and 46 of 2010 have been filed by respondent no.1 herein for fixing up the date of final hearing of the Revision Applications, as well as, for withdrawal of the amounts deposited by the applicant. In view of disposal of the Revision Applications, the only prayer that survives for consideration is the prayer for withdrawal of the amount. I see no difficulty in granting that prayer. Hence, the Criminal Applications are partly allowed. Respondent no.1 is at liberty to withdraw the amount so far * 14 * Cri.Revn.Applns. 597 to 599.2007 4.03.2011 deposited by the applicant pursuant to the orders passed from time to time. The amount deposited has been invested in fixed­deposit. Respondent no.1 will also be entitled to receive the interest accrued, so far on that amount. 15. At the request of the learned counsel for the applicant, time of 12 weeks is granted to the applicant to surrender for undergoing the sentence awarded to him. [SMT. R.P. SONDURBALDOTA, J]