* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.437 OF 2008 Parag Dolatrai Parekh ....Applicant/Orig.Accused V/s. 1. M/s.Emech Steel & Anr. (Proprietor Mansukhlal H.Vora) 2. State of Maharashtra .....Respondents/Orig.Complainants ====== Mr.P.R.Naidu and Ms.P.P.Naidu, adv.for applicant. Mr.Kishor Bhatia, adv.for respondent no.1. Mr.H.J.Dedhia, APP for State. CORAM :- SMT.R.P.SONDURBALDOTA, J. JUDGMENT RESERVED ON: 2ND APRIL, 2009. JUDGMENT PRONOUNCED ON : 31ST AUGUST, 2009. JUDGMENT :- 1. Heard counsels for both sides. 2. This Criminal Revision Application takes exception to the concurrent findings of the trial court and appeal court in the proceedings under Section 138 Negotiable Instruments Act. * 2 * 3. Mansukhlal Vora, proprietor of respondent no.1 filed a complaint under Section 138 Negotiable Instruments Act against one Chandrakant Parekh and the applicant. Later, Chandrakant Parekh came to be discharged from the proceedings. The only oral evidence recorded in the case is of the complainant. When the statement of the applicant under Section 313 CrPC was recorded, he had expressed his willingness to examine himself as a witness. He had also filed an application under Section 315 CrPC. However, as noted by the courts below, despite opportunity being given, the applicant did not examine himself on oath or produce any evidence. 4. It is the case and evidence of respondent no.1 that in the regular course of business, orders were placed by Chandrakant Parekh, the uncle of the applicant for purchase of goods, in the name of M/s.Sreenath Enterprises, the proprietary concern of the applicant. Accordingly, the goods were sold, delivered and invoices raised. Chandrakant Parekh handed over the cheque in question signed by the applicant to respondent no.1 towards part payment of the price of the goods. The cheque in question was presented for payment on two occasions and was dishonoured. The applicant has not disputed his signature on the cheque thereby giving rise to the presumption under Section 139 Negotiable Instruments Act. It has been his defence that he had handed over a blank signed cheque to his uncle Chandrakant Parekh in order to pay rent of his house. However, his uncle misused the cheque. He denies that he purchased any goods from respondent no. 1. * 3 * 5. Mr.Naidu, the learned counsel for the applicant submits that the courts below have erred in holding that the cheque was given by the applicant towards, discharge of legally enforceable debt, when it has been the case of the applicant that he has not purchased any goods from respondent no.1. He also submits that respondent no.1 did not produce any document before the trial court that any authority was given by the applicant to Chandrakant Parekh to deal with the respondent on his behalf. He further submits that had there really been a transaction of sale of goods between the applicant and respondent no.1, the cheques issued by the applicant would not have been a blank cheque. 6. Respondent no.1 has produced invoice (Exhibit-P1) in respect of the goods sold and delivered to the applicant. The invoice and challans in respect of the goods are in the name of M/s.Sreenath Enterprises of which the applicant is a proprietor. Chandrakant Parekh had collected the goods on behalf of the applicant and got the same delivered to M/s.Sreeji Industries & Fabricators at MIDC, Tarapore to whom they were to be supplied. 7. The defence of the applicant when put to the complainant during his cross-examination, has been denied by him. Since it is the specific defence of the applicant that he had handed over a blank singed cheque to Chandrakant Parekh for a particular purpose i.e. payment of rent of his house, the burden of proving this particular fact was on the applicant himself in view of Section 103 of the Evidence Act. For the reasons best known to him, the applicant did * 4 * not enter into the witness box or produce any other material to establish his above defence. 8. As regards issuance of the blank cheque, it is to be noted that the cheque received by respondent no.1 was not a blank signed cheque. In these circumstances, impugned orders cannot be said to be erroneous or illegal. The courts below have also taken the note of the fact that when the cheque was presented on the first occasion, i.e. on 19th March 1996, it returned unpaid with an endorsement “funds expected present again tomorrow”. Thereafter the cheque was presented again on 23rd March 1996. This time the cheque returned with remark “payment stopped by the drawer”. Despite this gap of few days, the applicant has not taken any steps either against Chandrakant Parekh or respondent no.1. Considering the entire conduct of the applicant, the Courts below have rightly inferred that the cheque in question was issued by the applicant to respondent no.1 towards discharge of legally enforceable liability i.e. towards the price of the goods sold and delivered by respondent No.1 to the applicant. As regards service of statutory notice, the same was sent by respondent no.1 by registred Post as well as Under Certificate of Posting, to the same address. Curiously, the envelope sent by RPAD returned with remark “incomplete address” whereas the envelope sent under certificate of posting did not return. Therefore, respondent no.1 was entitled for benefit of presumption under Section 27 of the General Clauses Act, that the notice sent by post has been delivered to the addressee at the address mentioned on the envelope. Besides, the applicant has never disputed * 5 * that Bharat Colony, Hemu Kalani Road, Kandivali (West) is his residential address. 9. In all the above circumstances, in my opinion, there is no error or illegality in the orders of the courts below. Hence, the Criminal Revision Application is dismissed. (Smt.R.P. SondurBaldota,J.)