1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.257/2007 Date of decision:15/9/2009 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? /No 3. Whether Their Lordships wish to see /No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? /No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/257-07crra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.257 OF 2007 Shriram s/o Nagnathrao Nilawar, Age 55 years, Occ. Business, r/o Shrikant Medical Stores, Warma Nagar, Police Colony, Parbhani, Taluka and District Parbhani. ...PETITIONER (Orig.Accused) VERSUS 1. The State of Maharashtra. 2. Haribhau s/o Rajabhau Giri, Age: 37 years, occ. Business & Agril, r/o Krishi Sarthi Nagar, Basmath Road, Parbhani, Taluka and district Parbhani. ...RESPONDENTS (Orig.complainant) ... Mr.P.N.Sonpethkar, Advocate, for the applicant. Mrs. B.R.Khekale, APP, for respondent State. Mr.M.P.Kale, Advocate, for respondent no.2. ... CORAM : K.U.CHANDIWAL, J. DATE :15/9/2009 *** 3 ORAL JUDGMENT: 1. Heard. Rule. By consent of the parties, the matter is finally heard at admission stage. 2. In a prosecution for an offense under Section 138 of Negotiable Instruments Act, in SCC No.889/2004, the accused/applicant was convicted by the learned Judicial Magistrate, First Class, Parbhani, directing him to pay fine of Rs.5,000/-; in default, simple imprisonment for two months and to pay compensation of Rs. 50,000/-. Same was tested in Criminal Appeal No.10/2007 where, the accused/applicant lost facing dismissal of the appeal. Hence, the Criminal Revision. 3. Counsel for the accused stressed that the cheque is altered, there is tampering to the cheque, the amount of Rs.5 lacs is made to Rs. 50,000/-. This aspect is not considered by the learned Judicial Magistrate, First Class, or the first appellate Court. The cheque, if taken from the face value of the complaint, could have been stated to be by way of security and, consequently, no offense under Section 138 of Negotiable Instruments Act. Thirdly, it was incumbent upon the complainant to establish that he had sufficient money at the material time to 4 pay Rs.50,000/- to the accused. The Counsel submits, in terms of Section 269-SS of the Income Tax Act, any advance taken by way of loan of more than Rs.20,000/- is to be made by an account payee cheque only and hence, the prosecution is perverse and calls for interference. 4. In the revision, though the scope is limited, I have gone through the evidence of the complainant and also the cross examination, which is annexed with the compilation by the accused. The theory that has been advanced before this Court is diagonally opposite to what has been suggested in the cross examination to the complainant. The accused contended there was transaction concerning sale of plot between accused and one Ramrao Sopane and that the accused had executed Isar Pavti of the plot in favour of the complainant and the cheque was given to one Rohankar and the said cheque has been mis-utilized by the complainant. 5. Though I find that the cheque at Exh.34 has correction in figure, however, the amount in words specifically indicate it to be Rs.50,000/- and Bank did not raise any objection about reduction of one decimal, without there being signature from the accused/account holder. This aspect cannot be agitated now. 5 6. It is curious, by a statutory notice dt. 24.11.2000 served to the accused/applicant herein on 30.11.2000, he was called upon to make remittance of the cheque amount of Rs.50,000/- which the complainant indicated having lent being friend and having good relations for conducting business in crackers at Diwali festival. It was a requirement for the accused/applicant herein to have traversed with the allegations made in the notice to put forward his defense which he has indicated in the cross examination. The slumber accounted by the accused in dealing with the notice speaks volumes against his conduct. 7. Then comes payment of Rs.50,000/- to the accused in cash at the shop of the accused. Though in terms of Section 269/SS of the Income Tax Act there is inhibition for making payment in cash, however, the penalty is provided under Section 271-D of the Income Tax Act but for that purpose, the prosecution in terms of Section 138 of Negotiable Instruments Act will not turn nugatory, to be vitiated. 8. Taking survey of the facts, the reliance by the learned Counsel to the judgment in the matter of Krishna Janardhan Bhat Vs. Dattatraya G.Hegde ( 2008) 4 SCC 54) will not be available to be coined. It was a case where the 6 complainant alleged to have parted the blank signed cheque handed over to his power of attorney holder the complainant, his relative, and cheque is used without there being transaction of advancing Rs.1.5 lacs. The Apex Court recorded that the parties did not disclose any transaction between them or any previous relations. 9. As stated earlier, there is acquaintance between the complainant and accused. Complainant has, in unmistakable terms, indicated of friendly relations which indeed is not disputed in the cross examination by the accused. 10. The submission, based on reliance to the judgment in the matter of M.S.Narayana Menon alias Mani V. State of Kerala and another ( (2006) 6 SCC 39) will also not be available as the accused has not discharged the burden on the basis of preponderance of probability through direct or circumstantial evidence as the cross examination is taken to an altogether different situation. The accused has indeed a right to maintain silence. However, was expected to discharge burden based on material on record. The benefits which the accused could have enjoyed in terms of Section 139 or in terms of Section 118(a) of the Negotiable Instruments Act are not accelerated. 7 11. In the situation, I do not find any error in both the judgments recording conviction against the accused/applicant. The revision lacks merit. It is dismissed. Rule discharged. The amount deposited by the accused/applicant be paid over to the complainant on his application and proper bond. ( K.U.CHANDIWAL) JUDGE agp/257-07crra