REVN.581-09 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION No. 581 OF 2009 Sambhaji Sopan Kamble ...Applicant Vs. The State of Maharashtra & Anr. ...Respondents *** Mr. S. B. Shelar, for the Applicant. Mr. P. S. Hingorani, APP, for the Respondent-State. Mr. S. A. Pawar for Respondent No.2. *** CORAM: V. M. KANADE J. DATE : OCTOBER 5, 2010 P.C. 1. This revision application has been filed by the applicant against the judgment and order passed by the Sessions Court, dated 27th July, 2009 by which order, the learned Sessions Judge was pleased to confirm the order of conviction passed by the trial Court, under S. 138 of the Negotiable Instruments Act. 2. The brief facts are as under- . Respondent No.2 is a recovery officer of the Shivjyoti REVN.581-09 - 2 - Sahakari Patpedi Maryadit, which is a society registered under the provisions of the Maharashtra Cooperative Societies Act, 1960. The applicant herein applied for loan from the said Patpedhi. After verifying the application of the applicant, loan was granted. However, the applicant failed and neglected to repay the loan amount and therefore, notice was issued to the applicant, asking him to repay the said amount. The accused issued a cheque of Rs.7,65,000/- in favour of the said Society towards the repayment of the outstanding loan amount. The said cheque, however, was dishonoured when it was deposited by the complainant in its bank. Upon dishonour of the cheque, a notice dated 31st October, 2003 was issued, demanding payment of the said amount. In spite of service of notice, the applicant failed to make the payment and therefore, a complaint was filed under S. 138 of the Negotiable Instruments Act and also under S. 420 of the I. P. Code, was filed. The learned Magistrate was pleased to issue process only under S. 138 of the Negotiable Instruments Act. The trial Court convicted the applicant under S. 138 of the said Act and sentenced him to suffer S.I. for 3 months and to pay fine of Rs.5,000/- in default to suffer S.I. for 7 days. The learned Magistrate further directed the applicant to pay compensation of Rs.8,00,000/- to the Society. Against the said order, the REVN.581-09 - 3 - applicant preferred criminal appeal in the Sessions Court. However, the criminal appeal was dismissed and the order passed by the trial Court was confirmed. Being aggrieved by the order passed by both the Courts below, the petitioner has preferred the present revision application. 3. It is submitted by the learned counsel for the applicant that the complaint was filed by the Society through its Recovery Officer and the Society had filed a copy of the resolution dated 5-11-2003. It was submitted that the said resolution clearly reveals that the Recovery Officer had been authorized to file and sign the complaint and no authority was given to depose on behalf of the Credit Cooperative Society. It was submitted that the Recovery Officer did not annex any documents namely loan application, loan documents, submitted by the accused, and in the absence of these documents, the complainant had not proved his case beyond reasonable doubt. 4. It was further submitted that the Recovery Officer did not give any particulars as to the date, amount and the manner in which it was sanctioned and so disbursed to the accused or even the period of loan repayment. It was submitted that the Recovery Officer has no personal knowledge of the alleged transaction. Reliance was placed on the judgment of the learned Single Judge of this Court in the case of – REVN.581-09 - 4 - Mr. Chico Ursula D’Souza Vs. M/s. Goa Plast Pvt. Ltd. [ 2009(1) ALL MR 290]. It was further submitted that the complainant had obtained ten blank cheques towards security and one of the cheques was misused by the complainant. It was submitted that even his land was mortgaged to the said Patpedi. While giving loan to the applicant, the amount of Rs.1,000/- was deducted from the salary of the guarantor. 5. The submission made on behalf of the applicant cannot be accepted. The respondent No.2 is Recovery Officer of the Credit Society and he had the authority to file the case on behalf of the Society and he has been examined as a witness by the said Society. It is an admitted fact that the accused has secured loan and certain amount is outstanding with him. His land has been mortgaged in favour of the Society and an amount of Rs.1,000/- per month was deducted from the salary of the guarantor. The submission of the learned counsel for the applicant that since he did not have the authority to deposit on behalf of the Society, his evidence has to be discarded, cannot be accepted. The Society being a juristic person can prove its case through its witnesses and the Society has examined the said witness, who obviously had knowledge about the said transactions. In the case of Mr. Chico Ursula D’Souza (supra) the facts are that Director of the Company had filed a complaint under S. REVN.581-09 - 5 - 138 of the Negotiable Instruments Act against the Managing Director of the Company. Under the facts and circumstances of the said case, the Court, therefore, came to the conclusion that it is the duty of the complainant to prove that he had entered into the witness box, pursuant to the powers given by Mr. Avdhoot Timblo, the Director of the Complainant and since he did not identify his signature, the power of attorney was held not proved. It was also held that it was not proved that it was issued pursuant to the resolution of the Board of Directors dated 30th June, 1995. The ratio of the judgment therefore, in my view, would not apply to the facts of the present case. In the present case Mr. Sandeep Anant Gadhave has not only produced the resolution which was passed by the Board of Directors of the said Sahakari Patpedi, but has also identified the signature of the Manager of the Patpedhi. Moreover, it is seen that no objection was raised regarding the capacity of this witness to depose on behalf of the Society when his evidence was recorded. From the judgment and order of the trial Court also no such submission was made. Since no such objection was raised by the accused in the trial Court, it is now now open to him to raise this objection. It appears that for the first time, accused raised this objection in the Sessions Court. The Sessions Court, however, had observed that the Society has examined REVN.581-09 - 6 - said Mr. Gadhave as its witness and merely because the complainant’s witness was not specifically authorized to depose on behalf of the complainant/Society, the complaint could not be dismissed. 6. This Court while exercising jurisdiction under S. 401 of the Cr.P.C. is not expected to re-appreciate the evidence on record and the scope for interfering with the order passed by the lower Court is very limited. In my view, both the Courts below have given cogent reasons and held that the complainant has proved its case. In my view, therefore, no case is made out for interference with the judgment and order passed by both the Courts below. Hence, criminal revision application is dismissed. [ V. M. KANADE J.]