1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL REVISION APPLICATION NO.181 OF 2009 Shekhar Laxman Mistry ...Applicant (Orig. Accused) Vs. The state of Mahrashtra & Anr. ...Respondents (Orig.Complainant) Mr.L.H.Patil, Advocate for the Applicant Ms. Mallika Ingale, Advocate for Respondent No.2 Mrs. R.V.Newton, A.P.P for the State AND CRIMINAL APPLICATION NO.569 OF 2009 IN CRIMINAL REVISION APPLICATION NO.181 OF 2009 Smt.Lalitha Shashidar Gujaran ...Applicant (Original Complainant) Vs. State of Maharashtra & Anr. ...Respondents (Orig.Accused) Ms. Mallika Ingale, Advocate for Applicant Mr.L.H.Patil, Advocate for Respondent No.2 Mrs. R.V.Newton, A.P.P for the State 2 CORAM: SMT.ROSHAN DALVI, J. DATED: 24TH NOVEMBER, 2009 P.C. 1.This Revision application is filed challenging the order of the learned 4 th Ad-hoc Additional Sessions Judge, Dindoshi, Mumbai dated 24 th March 2009, which dismissed the appeal of the applicant/accused in the Criminal Complaint No.450/SS/2005 in the Court of the learned Metropolitan Magistrate, 43 rd Court, Borivali, Mumbai who by his order dated 3 rd August 2006 convicted the accused of the offence punishable under Section 138 of the Negotiable Instrument Act and sentenced him to suffer Simple Imprisonment for 6 months and to pay fine/compensation of Rs.8,50,000/-. 2.There are two concurrent findings in favour of the complainant in the criminal prosecution under Section 138 of the Negotiable Instrument Act. The criminal prosecution is upon a dishonoured cheque of Rs. 8,44,000/-. 3.The case of the complainant is that the accused who was working with her in LIC required some finance. She borrowed amounts from her close relatives and advanced Rs.7,00,000/-. The accused executed the amount by letter/receipt dated 7 th October 2003 in his own 3 handwriting and signed by him. The complainant has produced not only the dishonoured cheque and the relevant statutory documents upon the dishonour, but also the receipt in the handwriting of the accused. The complainant has led evidence by affidavit of examination-in-chief. She has been cross examined upon the amount advanced to the accused as reflected in the notice. 4.It is also her case that thereafter, she paid Rs. 1,44,000/- to the accused in cash. A consolidated cheque came to be issued by the accused for Rs. 8,44,000/- dated 1 st June 2005. The receipt was there executed in October 2003. The cheque has been issued in June 2005. It represents the amount payable as on that date since the consideration that passed under the cheque carries a statutory presumption. 5.It is for the accused to rebut that presumption. To do that, the accused has cross examined the complainant. The cross examination shows a receipt shown to the complainant for Rs.1,00,000/- dated 15 th December 2001. The complainant has denied her signature on the receipt. She has stated that on that date she did not sign or receive Rs.1,00,000/- from the accused. The reliance upon that receipt shows an implicit admission of liability of having taken that amount which was 4 stated to be paid. Hence, the accused is shown to have admitted at least payment of Rs.1,00,000/- made to the complainant. The complainant ofcourse has denied receipt of the amount or the signature on the receipt. The receipt has not been proved by the accused. Hence, part payment is not proved. 6.Further cross examination of the complainant is in respect of the receipt for Rs.7,00,000/-. The amount was stated to have been paid partly in cash and partly by cheques. A suggestion was made that the accused had taken a loan for his flat, which has been denied. This suggestion shows that a flat was to be purchased by the accused. Her cross examination shows that she had given money to the accused for purchase of a flat. The argument on behalf of the accused in the lower Courts as well as before this Court has been that since he was in the service quarters, he did not need a flat. That argument is of no avail as a flat is required to be purchased for residence after retirement. 7.The complainant has been cross examined on certain erasures in white ink stated to have been made on the receipt. The original receipt from the r & P does not show any erasures. Erasures are seen on the reverse of the receipt which is not part of the document. 5 8.In the cross examination the complainant appears to have accepted that her husband and her uncle in whose presence the loan was given and had signed on the receipt. That fact appears to be incorrect upon seeing the receipt. However, the accused has not shown that the receipt was not signed by him. The signature of the accused on the cheque, the receipt as also in the plea of the accused are compared by the learned Magistrate under Section 73 of the Indian Evidence Act. They are seen also by this Court. The signatures are identical. 9.The substance of the cross examination does not show rebuttal of the statutory presumption by the accused. The lack of need cannot be accepted. The fact of taking the loan itself shows the need for a flat for which the money was taken by the accused from the complainant. The reliance upon a receipt of Rs.1,00,000/- showing part payment made, itself shows the loan taken. The case of the accused is of complete denial. No evidence is led on behalf of the accused. The statutory presumption subsists. Absolutely no case in defence is made out. 10.It is argued by Mr. Patil on behalf of the accused that the affidavit of examination-in-chief of the complainant shows that no documents are proved and 6 hence, both the orders of the lower Courts are perverse. The argument is completely incorrect. The affidavit of examination-in-chief shows how the receipt was executed. That shows the proof of the receipt of direct oral evidence. The dishonoured cheque and the memos have been tendered and marked exhibits. The demand notice is sent within a stipulated period of 30 days as required under Section 138 of the Negotiable Instrument Act. The argument that the case would be barred by limitation is also incorrect. The learned Magistrate has considered each of the aspects relating to the facts brought out by the accused in the cross- examination of the complainant. He has rightly observed that the accused has not cross examined the complainant on the validity of the contents of the documents. 11.Only in the arguments a case is sought to be made out on behalf of the accused that both the accused and the complainant had joint account from which he had issued the cheque which has been mis-used. This is the positive case which has to be made by the accused in his evidence. The accused is required to be cross examined upon such a case. The cheque is not issued by any organisation or institution in which both of them held a joint account. The cheque is issued by the accused in his individual capacity. 7 12.The learned Sessions Judge has appreciated each of these facts and dismissed the Appeal. 13.No infirmity in the aforesaid order. No interference is called for. The Criminal Revision Application is dismissed. 14.The accused shall forthwith surrender, and be taken in custody in the Court of the learned Metropolitan Magistrate, 44 th Court, Borivali, Mumbai in C.C.No. 4510/SS/2005 to serve his sentence. 15.The amount of Rs.3,70,000/- has been deposited in the Sessions Court as well as in this Court. Whatever amount is deposited in either of these Courts shall be allowed to be withdrawn by the complainant. 16.The Criminal Application No.569/2009 is allowed to be withdrawn and accordingly disposed off. (SMT. ROSHAN DALVI, J.)