1 REVN 530/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLIATION NO.530 OF 2010 Mr. Pradip Ramchandra Kadam ..... Applicant. V/s State Bank of India & Anr. ...... Respondents. Mr. M.S. Adenwala for the applicant. Mr A.S. Shitole, APP for the State. CORAM: V. M. KANADE, J. DATE : 7th December, 2010 P.C.:- 1. Heard. 2. Applicant is the original accused. He is challenging the judgment and order passed by the Sessions Court, Mumbai in Criminal Appeal No.104 of 2008 dated 28/09/2010. By the said order, the Sessions Court was pleased to confirm the order passed by the 30th Metropolitan Magistrate at Kurla, Mumbai, who was pleased to convict the applicant for the offence punishable under section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for three months and to pay compensation of Rs 1 lac and in default to suffer further simple imprisonment for a period of one month. During the pendency of the appeal, the applicant was taken into custody since he could 2 REVN 530/10 not avail of the cash bail. 3. Brief facts are as under:- 4. Respondent – State Bank of India filed a complaint under section 138 of the Negotiable Instruments Act against the applicant in which it was alleged that the applicant had applied for personal loan of Rs 1 lac which loan the applicant was granted after the applicant executed the agreement in favour of the complainant and agreed to repay the loan in monthly installments. According to the complainant, applicant/accused issued cheque dated 20/3/2006 for an amount of Rs 1 lac in favour of the complainant. However, after the cheque was dishonoured. the complainant issued demand notice which was duly served. He did not, however, pay the amount within the stipulated period and, therefore, a complaint was filed. The Trial Court, on the basis of evidence adduced by the complainant, convicted the applicant. The appeal which was filed against this order was also dismissed. 5. It is firstly submitted by the learned Counsel for the applicant that both the lower courts had erred in not considering the fact that there was no evidence on record to show who had authorized P.W.1 to file the complaint. Secondly, it is submitted that the cheque which was issued in 2006 was towards repayment of the loan which was disbursed in September, 2002 and, therefore, the cheque 3 REVN 530/10 was issued towards time barred debt and, therefore, there was no existing debt or legal liability. It is submitted that the complainant did not prove service of notice upon the applicant. It is then submitted that the complainant had issued post dated cheque which was taken as security and, therefore, it was not covered under the Negotiable Instruments Act. In support of the said submission, the learned Counsel for the applicant invited my attention to the statement of P.W. 1 – Suhas Ramchandra Diwan and the suggestion which has been made to him in cross- examination regarding authorization of the said witness to appear on behalf of the State Bank of India. The learned Counsel also relied upon the judgment of the learned Single Judge of this Court in Dr. Annasaheb Chougule Urban Co- op. Bank Ltd. Peth Vadgaon vs. Shri Narayan Pandurang Korgaonkar & Anr.1 and number of judgments on the said point and other points which are urged by him. 6. In my view, submissions made by the learned Counsel for the applicant cannot be accepted. In the present case, verification was recorded by the learned Magistrate on 19/10/2006 and in the verification P.W.1 has clearly stated that he is the Constituted Attorney of the complainant – Bank. In the affidavit of examination in chief in para 3 he has also stated that he is the authorized representative of the complainant. In the cross-examination, he has stated that he is working as Deputy Manager in the complainant – 1 2008 ALL MR (Cri) 2511 4 REVN 530/10 Bank since August, 2002 and he had offered to produce the authorization letter. However, the learned Counsel for the accused did not ask him to produce the said letter and merely a suggestion was thereafter made that he had no authority to depose on behalf of the complainant – Bank. Both the Courts below, therefore, have held that if the complainant would have been asked to produce the said document, the complainant would have done so. In my view, there is no infirmity in the finding recorded by both the Courts below. Ratio of the judgment on which reliance is placed by the learned Counsel for the applicant will not apply to the facts of the present case. In the said case, the Court has observed that though sufficient opportunity was given to the Manager of the Bank, he did not produce any authorization from the Bank in respect of filing of the complaint or to depose in support thereof. In the present case, in my view, no such direction was given to the complainant to produce the letter of authorization since no objection was raised and the complainant was not asked to produce the said document. The accused, therefore, cannot be permitted now to submit that valid authority was not produced. 7. So far as the question of time barred debt is concerned, both the courts below have observed that a revival letter dated 01/09/2005 was signed by the accused in favour of the complainant whereby he had acknowledged that his liability still existed under the loan agreement and, 5 REVN 530/10 therefore, the submission made by the Counsel for the applicant that the cheque was issued towards the time barred debt was not accepted. In my view, again, there is no infirmity in the said finding recorded by both the courts below. 8. So far as the service of notice is concerned, both the Courts below have accepted the evidence of P.W.2 – Chandrakant Joshi. P.W. 2 was working in the Bombay General Post Office as a PRO and, after going through the record, he has stated that the demand notice was sent to addressee and it was received by the addressee on 19/09/2006. The Trial Court also has observed that the accused had not led evidence to show that the address appearing in the notice of demand is not his residential address. Both the courts below, therefore, held that the notice was served. 9 In my view, therefore there is no substance in the submissions made by the Counsel appearing on behalf of the applicant. The applicant has not denied the fact that he has taken loan from the Bank. There is no dispute about the issuance of cheque. The presumption which is raised under section 139 also has not been rebutted by the applicant. Though the applicant’s counsel was asked whether the applicant was willing to deposit certain amount towards the compensation awarded by the Trial Court, he submitted that the applicant was not in a position to deposit any amount. 6 REVN 530/10 Under these circumstances, therefore, no case is made out for interfering with the orders passed by both the lower courts. Moreover, jurisdiction which can be exercised by this Court while entertaining criminal revision application under section 401 of the Cr.P.C is very limited and this Court cannot re-appreciate the evidence on record and come to a different conclusion. Criminal Revision Application is, therefore, dismissed. (V.M. KANADE, J.)