1 HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 130 OF 2008 Balaso Maruti Kamble ... Applicant. Vs. Bira Appa Mane & Anr. ... Respondents. Mr. M.A. Patil, for the Applicant. Mr. Rahul Kulkarni, for the Respondent No.1. Ms. S.V. Gajre, APP for State/Respondent No.2. CORAM: A.S. OKA, J. DATE: 24TH APRIL, 2009. JUDGMENT: 1 Rule. 2 The Advocate for first respondent waives service. Taken up for final disposal. 3 The applicant has been arraigned as an accused in a complaint filed by the first respondent for an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as “said Act”). 4 The case of the first respondent complainant is that considering the friendly relationship with the applicant he had advanced various amounts from time to time totally amounting to Rs. 80,000/- to the applicant. A cheque dated 15th May, 2002 was issued by the applicant in favour of the first respondent towards the discharge of the said liability. Said cheque was dishonoured and hence, first respondent filed the complaint against the applicant. 5 The learned Magistrate convicted the applicant. He was sentenced to suffer simple imprisonment for six months and to pay a fine of Rs.65,000/-. In default of payment of fine, he was directed to 2 suffer simple imprisonment for two months. The learned Magistrate directed that out of fine amount, a sum of Rs.60,000/- be paid to the first respondent as a compensation. The applicant preferred an appeal against an order of conviction which has been dismissed by the impugned order. 6 The learned counsel appearing for the applicant has taken me through the impugned judgments and orders. His submission is that the first respondent has not established that the cheque in question was issued for discharge of a legally enforceable debt or liability. He invited my attention to the evidence of the first respondent. He pointed out that in the examination in chief, the first respondent stated that the details in cheque were filled in by the applicant himself. But in the cross examination he admitted that the details in the cheque were filled in by his son and the applicant only signed the cheque before handing over the same to him. He submitted that this vital discrepancy has been completely overlooked by the courts. He submitted that the first respondent has not examined his son in support of his case. He further submitted that the impugned judgments and orders are perverse. The learned counsel appearing for the first respondent supported the impugned judgment and order. 7 It must be noted here that when this Revision Application came before this court earlier a suggestion was made by this court to explore possibility of settlement especially when the applicant had deposited a sum of Rs.30,000/- during the pendency of the appeal. Learned counsel for the applicant stated that he has repeatedly called upon the applicant to remain present in this court. He has placed on record xerox copies of two telegrams sent by him to the Applicant. He stated that applicant has not responded. 8 I have carefully considered the submissions. It must be noted here that the scope of interference in a revision application is 3 limited. It is not permissible for this court to reappreciate evidence in a revision application. Interference can be made with the impugned order only if the impugned order is found to be perverse or contrary to the well established law. 9 In the examination-in-chief, the first respondent has stated that he had friendly relationship with the applicant for 20 years and time to time he had advanced amount to the applicant totally amounting to Rs.80,000/- and discharged the liability of repayment of the said amount. The cheque in question was issued by the applicant. The applicant stated in the examination in chief that the cheque was signed by the applicant in his presence and the other details in the cheque were filled in by the first respondent. In the cross examination he stated that he had withdrawn an amount of Rs.30,000/- from the account of his wife in the Bharat Bank and had withdrawn a sum of Rs.40,000/- from his own account from the Ganesh Bank of Kurundwad. A suggestion was given in the cross examination to the first respondent that one Shrikant Jadhav had filed a complaint against the applicant. Further suggestion was given that the first respondent and the said Shrikant Jadhav have obtained signature of the applicant on the blank stamp paper. The correctness of the said suggestions has been denied by the first respondent. In the cross examination, he admitted that his son had filled the details including the amount in cheque as per his instructions and the applicant signed the said cheque. In the cross examination, the applicant did not challenge the fact that the cheque bears his signature. The Sessions Court has noted that applicant remained absent before the trial court for about two years and his presence was secured by issuing non-bailable warrant. The appellate court after referring to the roznama of the Trial Court has noted that sufficient opportunity was given to the applicant to lead evidence but he has not adduced any evidence. 4 10 After going through the evidence of the first respondent, it is not possible to come to a conclusion that the presumption under section 139 of the said Act stood rebutted in the present case. The said presumption is that cheque is issued in discharge of a debt of liability. No material is brought on record to show that the debt was not a legally enforceable debt. The aforesaid discrepancy in the version of the first respondent is not sufficient to rebut the presumption under section 139 of the Code of Criminal Procedure. In the circumstances, it is very difficult to find fault with the impugned order of conviction. 11 As stated earlier the trial court has imposed a fine of Rs.65,000/-. It must be stated that during the pendency of the appeal before the Sessions Court, a sum of Rs.30,000/- has been deposited by the applicant. The learned counsel appearing for the applicant submitted that as 50% of the compensation amount has been already deposited, the substantive sentence may be reduced. There is a merit in the submission. The amount of Rs. 30,000/- has been deposited by the applicant in the Sessions Court on 20th March, 2007. Therefore, the substantive sentence of imprisonment of six months deserves to be brought down to two months. Hence, I pass the following order: i) The conviction of the applicant for the offence punishable under section 138 of the Negotiable Instrument Act, 1881 is up-held. ii) The substantive sentence is reduced to simple imprisonment of two months. iii) The order regarding payment of fine is confirmed. iv) The sentence in default of payment of fine is also confirmed. However, time of three months from today is granted to the applicant to deposit the balance fine amount of Rs.35,000/-. In default of payment of balance of fine amount within three months from today, the applicant will have to suffer simple imprisonment for two months. 5 v) Revision Application is disposed of in above terms. JUDGE. 6 HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 130 OF 2008 Balaso Maruti Kamble ... Applicant. Vs. Bira Appa Mane & Anr. ... Respondents. Mr. M.A. Patil, for the Applicant. Mr. Rahul Kulkarni, for the Respondent No.1. Ms. S.V. Gajre, APP for State/Respondent No.2. CORAM: A.S. OKA, J. DATE: 24TH APRIL, 2009. P.C.: For the reasons recorded separately in the judgment, the following order is passed:- i) The conviction of the applicant for the offence punishable under section 138 of the Negotiable Instrument Act, 1881 is up-held. ii) The substantive sentence is reduced to simple imprisonment of two months. iii) The order regarding payment of fine is confirmed. iv) The sentence in default of payment of fine is also confirmed. However, time of three months from today is granted to the applicant to deposit the balance fine amount of Rs.35,000/-. In default of payment of balance of fine amount within three months from today, the applicant will have to suffer simple imprisonment for two months. v) Revision Application is disposed of in above terms.