1 CRI.REVN.APPLN.NOS.255/10 & 257/10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL REVISION APPLICATION NO.255/2010. WITH CRIMINAL REVISION APPLICATION NO.257/2010. Sitaram Daga Rambole Age: 56 Yrs., occu. Service, R/o Torkheda, Tq. Shahada, District Dhule. - PETITIONER (orig.Accused) VERSUS 1) The State of Maharashtra Through the Secretary, Home Department, Mantralaya, Mumbai. 2) Budha Shiva Bhoi Age: 55 Yrs., occu. Business. R/o Patonda, Tq. Amalner, District Jalgaon. - RESPONDENTS ***** Mr.RR Mantri,Advocate for petitioner; Mr.NB Patil, APP for State; Mr.Vinod P.Patil, Adv. For Resp.No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 20th January, 2011. PER COURT : 1) Heard finally. Rule returnable forthwith. Both the Criminal Revisions taken together as they are between the same parties, 2 CRI.REVN.APPLN.NOS.255/10 & 257/10 touching common question involved in a proceeding under Section 138 of the Negotiable Instruments Act. 2) The learned Judicial Magistrate, First Class, Amalner, convicted the petitioner – Sitaram for breach of terms of Section 138 of the Negotiable Instruments Act. The matter was carried in the appeal before the learned Additional Sessions Judge, Amalner, who, by order dated 21.7.2010 dismissed the respective appeals moved by said Sitaram. Both the judgments are questioned in the present revisions. 3) The respondent no.2 came with a case that since he is acquaintance to the applicant/accused – Sitaram, he paid an amount of Rs.3,00,000/- on 28.5.2006, against which he received two cheques of Rs.1,50,000/- each denomination. The amount was to be repaid within six months. Consequently, the cheques were presented on 30.12.2006 and dishonoured. 4) Reading the complaint, the judgments, the notice, it is not clear whether the cheques had date as 28.5.2006 or 30.12.2006. Both the learned Counsel expressed their inability to advance. The other glaring omission that has been highlighted on behalf of the revision applicant 3 CRI.REVN.APPLN.NOS.255/10 & 257/10 is, he denied his monetary transaction with the respondent no.2 and in terms of Section 315 of Cr.P.C led his evidence by putting applicant/accused in the witness box. He was thoroughly cross-examined by Respondent no.2 as the complainant. This aspect was certainly to the knowledge of the Court and it was expected to deal with the said evidence and to accept or to negate the same. However, both the courts have skipped this vital aspect of the matter. The reference to presumption under Section 139 of the Negotiable Instruments Act has been overburdened by both the courts, without keeping track of the position of law that it is rebuttable. 5) The learned JMFC, without the sale-deed or its copy being exhibited refered to the same and accepts that Respondent no.2 could have sufficient funds to disburse to the revision applicant. This exercise is unwarranted. The learned Judge ought to have got the sale-deed or Photostat copy legally proved and exhibited. 6) Taking these flaws into consideration, though this is a revision, the matter requires re-consideration. The conviction recorded against the accused/revision applicant in both the revisions is quashed and set aside. The matter is remitted to the learned JMFC, Amalner 4 CRI.REVN.APPLN.NOS.255/10 & 257/10 to decide both the cases afresh considering the evidence already adduced. Liberty to both the sides to adduce additional evidence, if they so desire. 7) The amount so far deposited by the revision applicant before the learned JMFC, Amalner to remain with the said Court, or to be invested in a nationalized bank for two years. Party eligible to receive the amount will stake claim on conclusion of the trial. The learned Judge, after receiving a writ shall ensure to dispose of both the complaints within six months 8) Both the Criminal Revision Applications are disposed of in the aforesaid terms. ( K.U.CHANDIWAL ) JUDGE bdv/