M/S.Sanquelim Investments Pvt. ... vs Dr.Mohan Bhave State & Anr
2009 Latest Caselaw 147 Bom

                                    1

MNM




                                                                         
                                                 
                  IN THE HIGH COURT OF JUDICATURE
                             AT BOMBAY

         CRIMINAL       REVISION APPLICATION NO.405 OF 2009




                                                
M/s.Sanquelim Investments Pvt. Ltd.
& Anr.                                          ...Applicants




                                        
    Vs.
Dr.Mohan Bhave State & Anr.                     ...Respondents
                            
Mr.P.H.H.Ponda, i/b. Aarkey Legal, Advocate for the
Applicants
                           
MR. Y.M.Chaudhary, Advocate for the Respondent
Mrs.A.A.Mane, A.P.P for the State


                           CORAM: SMT.ROSHAN DALVI, J.

DATED: 19TH DECEMBER, 2009

ORAL JUDGMENT.

1.This Civil Revision Application challenges the order of

the learned Metropolitan Magistrate, 44th Court, Andheri, Mumbai in C.C.No.376/SS/2005 dated 12th June 2007 convicting the applicants of offence punishable under Section 138 read with Section 141 of the

Negotiable Instruments Act and sentencing applicant No. 1 (accused No.1) to pay fine of Rs.5000/- and applicant No.2 (accused No.4) to simple imprisonment for one year and to pay compensation of Rs.5,50,000/- and in default

to suffer simple imprisonment for 3 months. The applicants have also challenged the judgment of the

learned Sessions Judge, Greater Bombay upholding and confirming the said sentence on 23rd June 2009. The

initial complaint under Section 138 read with Section 141 of the Negotiable Instruments Act came to be filed

by the respondent No.1 (complainant) herein inter alia against the applicants herein (the accused company) upon a dishonoured cheque of Rs.5,00,000/- issued by

the accused company on 29th July 2000.

2.The parties had entered into certain agreement with regard to sale of shares of one Zuari Finance Limited,

which is a sister concern of the accused company, which were agreed to be purchased by the accused company from

the complainant.

3.A letter dated 31st July 2000 came to be written by the accused company to the complainant showing that they

agreed to purchase from the company 50,000 shares of Zuari Finance Limited at the rate of Rs.12/- per share.

4.In the letter dated 7th August 2000 to the complainant

the accused company confirmed that they received the share certificates and transfer deeds duly filled-in and completed, as per the list attached to that letter.

5.By a letter dated 9th August 2000 to the complainant

the accused company claims to have forwarded a cheque dated 10th September 2000 for Rs.6 lakhs towards sale

of 50,000 shares of Zuari Finance Limited.

6.It may be mentioned that these letters, which are not denied by the accused, show the discussions, agreement and transaction, with regard to sale of shares alone.

7.By a letter dated 14th August 2000 to the complainant

the accused company referred to discussions had with the complainant regarding a short term loan of Rs.5

lakhs to the complainant on the terms agreed by the complainant and the accused company. The accused

company referred to a cheque of Rs.5 lakhs bearing No. 107376 drawn on Union Bank of India being issued to the

complainant for that purpose. It regretted to inform the complainant that the short term loan was not

possible and hence the amount could not be released to the complainant. It notified the complainant that the bank had been informed to stop payment and requested the complaintant to return the cheque dated 29th July

2000.

8.The complainant, however, presented the cheque for payment on 17th August 2000. It was dishonoured on 18th

August 2000. The complainant was intimated of the dishonour by the bank on 19th August 2000.

9.The complainant issued notice of dishonour upon the

accused company and its Directors on 23rd August 2000. The notice came to be replied by the accused company on

16th September 2000. The criminal complaint came to be filed accordingly.

10.It is seen that the issue of the cheque by the accused company is not denied. Consequently the consideration

that passed thereunder for discharge of the liability of the accused company under the transaction that

transpired between the parties is statutorily presumed under Section 139 of the Negotiable Instruments Act. It

is for the accused to rebut that presumption.

11.It is the case of the complainant that the parties had agreed for the sale of shares of Zuari Finance Limited

to the accused company. The price of the shares, the number of the shares as well as the factum of the sale came to be incorporated in the letter dated 31st July 2000. The documents required to be executed and the

time for the completion of the transaction was also mentioned in the letter dated 31st July 2000. That letter represents the complete transaction between the parties. That letter was acted upon by the complainant.

The complainant sent the share certificates and the transfer deeds as agreed. The accused company made

part payment of Rs.5 lakhs towards the agreed consideration of Rs.6 lakhs (50,000 shares @ Rs.12/-

per share) for the transaction set out in the letter dated 31st July 2000. The company also confirmed

receipt of the documents relating to the transfer of shares from the complainant. The transfer was effectuated on 7th August 2000. The complainant has

relied upon xerox copies of share certificates with the necessary endorsement showing transfer from the name of

the complainant to the name of the accused company under the seal of the accused company signed by the

same person who had signed against the seal of the transfer in favour of the complainant a year earlier.

12.It is further the complainant s case that despite the

transaction having been effectuated by 7th August 2000, on 9th August 2000 the accused company sent another

letter stating that they were forwarding another cheque of Rs.6 lakhs in respect of the transfer of 50,000 shares @ Rs.12/- per share. Though the letter mentioned that the cheque was enclosed, no cheque was enclosed

with the said letter.

13.It is further the complainant s case that thereafter on 14th August 2000 the accused company dishonestly

stated that there was an agreement for a short term loan to be given by the accused company to the

complainant for which the cheque dated 29th July 2000 came to be issued and that the loan was not to be

granted and hence the cheque was not to be presented. The complainant presented the cheque since it was

towards part consideration of the sale of the shares which was already effectuated.

14.It is the case of the accused company that the cheque was issued as and by way of short term loan to be

granted to the complainant by the accused company. After the issue of the cheque the company decided not

to grant the loan. Hence the accused company informed the complainant not to present the cheque and stopped

its payment. The transaction relating to the sale of shares is not denied or disputed. In fact it is the

case of the accused company that that is the separate transaction for which a separate cheque of Rs.6 lakhs

was issued to the complainant, which the complainant has not presented for payment.

15.These two cases are required to be considered and

appreciated.

16.The fact that there were discussions between the parties is admitted. The fact that there were

discussions for the sale of shares of the complainant is also admitted. The fact that the dishonoured cheque

was issued pursuant to discussions is also admitted. Whether or not, these discussions were for the sale of

shares alone or also for the grant of loan to the complainant is to be seen.

17.Unfortunately though the transfer of shares was effectuated by 9th August 2000 the cheque issued on 29th

July 2000 was not deposited by the complainant in his bank account. Before its deposit on 14th August 2000

the company stopped payment of the cheque on 14th August 2000 on the ground that the loan which was to be

granted to the complainant was decided not to be granted. Therefore, this defence has to be further

considered. It is this defence that is material; the transaction for the sale of the shares is a separate

and distinct transaction as per the case of the company.

18.The case of the accused company is that it agreed to grant a short term loan to the complainant. The accused Company is not a finance company. No documents of the

loan agreed to be granted are stated to be executed by the loanee / complainant. No security for repayment of the loan is shown to be taken by the company. Only a cheque is issued and a fortnight after the issue the

company has changed its decision. A company acts through its Directors. The Directors are the agents of

the company. The Directors act collectively on the board of the company. Consequently the company acts

through its resolutions. The resolutions are passed by the Directors in the Directors Meetings. No

resolution for grant of the short term loan is shown to have been passed. It is not stated whether that is the usual business of the company.

19.The witness examined on behalf of the company who was

looking after the administration of the company has been extensively cross examined on this defence. The

witness stated that he did not know of the practice of the company to give short term loans to individuals.

He did not know to how many persons such loans were given. He did not know whether the complainant applied

for the loan. He was not aware of the agreement between the company and the complainant either orally or in

writing. He was not aware of the discussion in the meeting of the Board of Directors to sanction any loan to the complainant. He agreed that the Board of Directors had to pass a resolution to sanction such a

loan. He did not know whether the company could sanction a loan without the board resolution. He did not know the rate of interest charged by the company on such loan or the repayment schedule for the loan. He

did not know whether any collateral security was obtained by the company for the loan.

20.So much for the defence of the company with regard to

the admitted issue of the cheque _ that was for a loan that never was.

21.The very letter dated 14th August 2000 shows an agreement between the parties that was complete. Both

the parties are bound by such an agreement. No party can resile from such an agreement.

                               ig                                   The party which
      resiles       would    be   breaching           the     agreement.               If      the
      company, upon discussions,                 mutually agrees                   to give a
                             
      loan     of    Rs.5    lakhs,    it           cannot      resile          from         that

agreement on the ground that it was not possible, if it

was decided to grant the loan which decision was mutually taken after discussions had by the parties to

the agreement. Hence, even if the accused Company had agreed to give a loan to the complainant for which it

issued a cheque, that agreement is enforceable. The discussions had between the parties itself show that the consideration under the cheque admittedly drawn by the company represented a legally enforceable liability

of the company. After those discussions if a cheque is issued it will have to be honoured, and if it is dishonoured the company would have to show how it is justified in dishonour it. That would be the defence of

the company in an action upon dishonour of the cheque, which was admittedly drawn and which carried the

statutory presumption under Section 139 of the Negotiable Instruments Act. If upon the case of the

company that there was an agreement to grant a loan, the company issued a cheque, the company must honour

the cheque. The company has not shown why it is justified in dishonouring the cheque except that it is presently not possible and that the company is

unable to realise the payment . Even if that is so the defence of the company for dishonour of the cheque

is not made out. The company would be liable to honour the cheque already issued upon the agreement

between the parties be it for loan or otherwise. The company s lack of possibility or inability to realise

the funds is no ground to dishonour the cheque issued by way of fulfilling its obligations under the

admittedly executed and completed contract between the parties.

22.D.W.1 who is the officer incharge of administration of the company was shown the letter dated 14th August 2000 in his cross examination. He has not been able to

identify the signature of the signatory of the said letter who is shown as the authorised signatory of the company. The letter is shown to be sent by registered post A.D. He has not been able to produce the postal

acknowledgment of the letter, though he took time to check the records to produce the acknowledgment card.

He has been shown the envelope in which the letter was received by the complainant. He stated that he was not

aware that it was sent by his company in that envelope.

23.The complainant has admittedly received the company s letter dated 14th August 2000 by post. It is therefore marked an Exhibit in evidence (See Bishwanath Rai Vs.

Sachidanand Singh A 1971 SC 1949 @ 1953) this would show the mere fact that it was sent and received.

                                ig                                                           It
      would    not     prove      the    truth    of      its       contents             (See

Madhoklal Sudham A.1954 Bom. 305; Re: Mubarak Ali A

1957 SC 856; Re: Sir Mohammed Yusuf A. 1968 Bom 112 and Om Prakash Berlia Vs. Unit Trust of India A 1983 Bom

1). He has admittedly not replied to it. Much ado made about that fact in the cross examination. The

complainant has stated that he has not replied to it as it was completely false. The parties were not

litigants. A mere lack of reply, therefore, cannot prove the truth of the contents of the letter which have not been proved even by examination of the officer incharge of the administration of the company, D.W.1

who has even failed to identify the signature of the signatory to the letter and in view of the complete lack of any other corroborative evidence or the probabilities of the issue of the letter.

24.The company had sent the complainant the letter dated

14th August 2000. The company has based its entire defence to the criminal action under the dishonoured

cheque based upon the letter dated 14th August 2000 in a bid to rebut the statutory presumption that arises

out of the admittedly drawn and issued cheque by a Director of the company on behalf of the company for the contract admittedly entered into upon discussions

by the company with the complainant. The letter bears an illegible signature. The witness examined by the

company is the officer incharge of the administration of the company. That witness when shown the letter has

been unable to identify the signature on the letter. He admitted that he did not know the name of the signatory

who has signed as Authorised Signatory . It must be remembered that 5 days before that letter the same

witness D.W.1 had signed the letter dated 9th August 2000 of the company as Accounts Department . He is,

therefore, a competent witness to depose about his colleague in his company who has signed the letter 5 days thereafter. Yet he has not identified the signatory. The signatory of the letter dated 14th

August 2000 has not been examined. The contents of the letter dated 14th August 2000 are, therefore, also not proved though it has been marked exhibit based upon the only fact that it was received by the complainant.

25.The reliance by the company upon its own letter dated

9th August 2000 stating that it was forwarding a cheque of Rs.6 lakhs towards sale of the shares and contending

that the complainant did not present that cheque for payment is a needless issue with which the present case

relating to the dishonour of the cheque is completely unrelated and unconcerned and has been brought up only to confuse the otherwise clear liability of the company

under the cheque admittedly issued by it. The learned Judge has however, allowed evidence to be led on the

issue of the letter dated 9th August 2000 allegedly forwarding the cheque of Rs.6 lakhs thereunder. The

presentment of that cheque has not been shown in the evidence of the defence witness though time was granted

for that purpose. The issue of a specific cheque from the counterfoil cheque book of the company has not been

shown by the company in the trial or even upon this Court s query.

26.To make matters worse and to make the confusion complete, however unsuccessfully, two letters dated 9th August 2000 are sought to be produced in the trial

Court and have been marked Exhibits-41 and 42 upon the evidence of D.W.1 that they were issued. Both the letters relate to the cheque for Rs.6 lakhs. It was the admitted sale price for the sale of 50,000 shares

of Zuari Finance Limited @ Rs.12/- per share. One letter addressed to the complainant is signed by D.W.1

himself as Accounts Department . It shows the date of the cheque without any further particulars of the

cheque. It shows that the cheque is dated 10th September 2000. The witness has deposed that he has

signed the letter and identified its contents. The contents of the letter marked Exhibit-41 may be taken to be proved upon the evidence of D.W.1. He has

deposed that it was a computer print-out. The letter Exhibit-41 does not show the number of the cheque or

the bank upon which it was drawn.

27.The other letter also dated 9th August 2000 marked exhibit-42 in evidence shows the said cheque of the

said date and the said amount also containing further particulars with regard to the number and the bank upon

which it was drawn. It shows that it bore No.504053 and was drawn on United Western Bank Limited, Fort, Mumbai.

That cheque is not signed by D.W.1. It bears an illegible signature of Accounts Department . It does not show the name of the signatory. Though D.W.1 was in the accounts department of the same company on that

day, he has not identified the signature of that letter as that of his colleague.

28.During the cross examination, D.W.1 was questioned as

to whether the cheque of Rs.6 lakhs was encashed by the complainant. On 5th January 2007 in his cross

examination he stated that he would have to check the record. On 20th January 2007 he stated that he has

forgotten to check the details and requested more time to check the records. On 23rd February 2007 he deposed

that cheque bore No.107354 of Union Bank of India. The account number of the company was 55125. He deposed that the cheque was not encashed. He has not shown the

documentary evidence which would prove that the cheque was issued and not encashed in the trial court.

ig Mr. Ponda was specifically called upon to produce the bank records of the company to show that this very cheque

was not encashed though other cheques in that series were encashed. Mr. Ponda again called for instructions

but which have not been received and shown to Court. Strangely though the witness deposed that the relevant

cheque bore No.107354 the letter dated 9th August 2000 Exhibit-42 shows that the cheque bore No.504053.

Though the deposition of D.W.1 shows that the cheque was drawn on Union Bank of India, the letter dated 9th August 2000 Exhibit-42 shows that the cheque was drawn on United Western Bank Ltd., Fort Mumbai. So much for

the cheque that never was.

29.The transaction took place on 31st July 2000 yet the cheque has been dated 29th July 2000. It has been

issued duly filled-in by the company yet the complainant has been cross examined upon its date. The

complainant has stated that he does not know why the cheque was dated 29th July 2000 when the transaction

between the parties for sale of shares of Zuari Finance Limited took place on 31st July 2000 after discussions

between them.

30.The complainant has been cross examined upon why the

cheque was not presented for payment until 17th August 2000. The complainant ig has clarified in his cross examination that that was because the accused told him that the company was based in Goa and it would take

time to transfer the amount from Goa to Mumbai.

31.The accused have also raised dispute about the very transfer of the shares though they claim to have issued

the cheque for such transfer. They contend that the transfer is not effected. Why ever would they not

cause the transfer to be affected if they issued the cheque towards such transfer is completely isoteric.

32.The complainant has relied upon the effectuation of

the discussions by the very sale of the shares. The complainant has produced the xerox copy of the share certificates themselves. These show the last transaction dated 7th August 2000. The company claims

that the shares have never been transferred though the company also claims that the cheque of Rs.6 lakhs

towards the entire sale price of the shares was issued. The company has relied upon two letters between the two

sister concerns being the company and Zuari Finance Limited dated 15th June 2005 and 15th July 2005. The

company asked its sister concern whether the shares of the complainant were transferred to their name. Its sister concern informed the company that the shares of

the complainant were not transferred. The company in which the complainant ig held the shares is a listed company. It would have declared dividends in the years between 2001 to 2005-2006. These letters are of the

year 2005, 4 years after the complaint came to be filed and 5 years after the transaction came to be entered

into. There is absolutely no circumstantial or substantial evidence showing that the complainant

continued to be a member of the company and continued to enjoy the rights of the membership of the company

pursuant to continuing as such member.

33.It is futile to contend that there was no transaction for transfer of shares and to merely bring on record by

two letters that the shares were not transferred in favour of the accused company in view of its own letter dated 9th August 2000 sending the cheque representing the share transfer price to the complainant.

34.As against this the complainant has shown the

strongest possible circumstance of the transaction for sale of shares between the parties being the

effectuation of the transfer itself. The complainant ceased to be a member. The company became a member in

its sister concern. The complainant would have thereafter no further documentary evidence to further substantiate the transaction.

35.The copies of the share certificates produced by the

complainant was shown to the witness who deposed on behalf of the company D.W.1. D.W.1 was asked to

identify the initials on the reverse of the share certificates showing the person who signed the share

certificates on behalf of the company upon the seal of the company with regard to the last transfer of the

shares from the complainant to the company. Since the company was the transferee/purchaser/buyer of the

shares to become its member and to obtain membership rights under the Companies Act, 1956. The witness who is an officer in the administration of the company could not identify the initials. He was asked if the

signatures were of Mr. Javkar (Mr. Javkar is stated to be the Chartered Accountant of the company). The witness stated that he required time to check up the records on 5th January 2007 when he was being cross

examined. On 23rd February 2007 he deposed that the share certificates and the signatures thereon were not

available in the company s records and he was not aware that it bore the signature of the Sanjay Javkar on

behalf of the company.

36.The original share certificates are required to be lodged by the transferee/purchaser/buyer of the shares with the company for effecting the transfer to obtain

membership rights. Hence, the transferor/seller of the shares would require ig to give the original share certificates to the buyer. He would obtain and get for himself only its xerox copies for his record. When the

transaction took place between the parties on 31st July 2000 and the cheque dated 29th July 2000 was issued in

part payment of the price of the shares sold by the complainant as the transferor to the company as the

transferee, the complainant could have been given copies of the share certificates. The complainant can

therefore, produce only such copies in the Court. It is for the company to produce the original share certificates. If the company does not produce the original share certificates, the copies of the share

certificates produced by the mechanical process of obtaining xerox copies/photo copies would be admissible in evidence as secondary evidence being copies of the original documents taken out by such mechanical

process. Copies of the share certificates showing a transfer duly executed produced by the complainant are,

therefore, rightly taken on record as exhibits and the witness on behalf of the company has been shown the

said share certificates to be able to explain the last transfer entries.

37.It may be mentioned that unless the complainant delivered the original share certificates he would not

have been paid the consideration for the shares. It may also be mentioned that unless the company registered

the transfer it would not have obtained the benefits of the transfer of shares. The company would require to

show the original share certificates also to its Auditors to justify the consideration paid for such

transfer. Consequently the original share certificates must be taken to be in the custody and possession of

the company. The company having not produced it from such proper custody, an adverse inference that if such

certificates were produced, it would show the transfer of the shares in favour of the company would be required to be drawn. In fact the document would show a legitimate transfer provided, ofcourse, it is a

transfer for consideration. It would estop the complainant from contending otherwise. It is only because the company has got the shares transferred in its name, but has not shown the payment made for the

transfer, that the company has not produced the original share certificates. Consequently the copies of

the share certificates produced by the complainant on record must be accepted as genuine secondary evidence.

So much for the share certificates that are proved.

38.The cheque has been issued by the company. It is signed by its Director. The complainant may not know which Director signed the cheque as the cheque may or

may not be signed in the presence of the complainant. In this case the complainant deposed that the cheque

which came to be dishonoured was signed by Dr. Praful Hede. The complainant was asked in his cross

examination how he made that statement. Thanks to the cross examination, the complainant has clarified that

he stated so because he was told so by Sanjay Javkar who was the Chartered Accountant of the company. D.W.

1, who was looking after the administration of the company, has been examined as the witness of the

defence. He is the competent witness in as much as he was admittedly looking after the administration. On 27th December 2006 in his cross examination he was shown the cheque. He had deposed that he did not

recognise the signature and would have to check the record. The cheque is admittedly issued by the company. It has to be signed atleast by one of its Directors. The officer incharge of administration was required to

ascertain who was that Director. On 20th January 2007 the witness was again shown the cheque. He deposed

that the cheque was signed by Mr. Samit Hede. He identified the signature of the Director of his company

Mr. Samit Hede. That is therefore, an admitted position. Dr. Praful Hede would not be liable upon the

cheque as he is not the signatory on the cheque. Mr. Samit Hede would only be liable as the Director of the company who signed the cheque. (see K.K.Ahuja Vs.

V.K.Vohra 2009(8) SC, 691 considering SMS Pharmaceuticals Ltd. Vs. Neeta Bhalla 2005, SCC (Cri.)

1975, Sabitha Krishnamurthy Vs. Chenna Basavaradhya A 2006 SC 3086).

39.It is argued on behalf of the company by Mr. Ponda

that this fact has not been put to Mr. Samit Hede, who is one of the accused and who has been convicted by the

learned Magistrate, in his 313 statement and therefore, the conviction is bad. It may be said that this

argument is bad instead. The evidence that is required to be put to the accused under Section 313 of the Cr.P.C is the evidence of the prosecution which is disputed by the accused. Admitted facts do not have to

be proved. Hence, admitted facts are not required to be put to the accused. The admissions of the accused is not a part of the prosecution case, but is a case either in his 313 statement itself or in the evidence

of the witness produced by the accused as defence witness. The purpose and object of Section 313 is to

enable the accused to explain the circumstances against him. Those are therefore, the circumstances that are

brought out by the prosecution against the accused. Those are not the circumstances that the accused

himself brings up before the Court as a part of his case. It has not been contended on behalf of the accused that the letter dated 14th August 2000 should

have been put to the accused. That is because that is the case of the accused himself/itself. Similarly the

other part of the case of the accused is that not Dr.Prafful Hede, but Mr. Samit Hede, drew the cheque.

That has been deposed and clarified in the cross examination of D.W.1. Consequent upon that cross

examination Dr. Prafful Hede could not be convicted despite the evidence of the complainant. He has been

rightly acquitted by the learned Magistrate. It is too mischievous to suggest that no Director of the Company

could have drawn the cheque, which is admittedly drawn by and on behalf of the company. All that the trial has to consider is which of the Directors drew the cheque. Under the facts which are brought out in this

trial by the defence witness himself, it is seen that no Directors other than Mr. Samit Hede signed the cheque which came to be dishonoured. The liability under the dishonoured cheque is only of Mr. Samit Hede

and none else. The liability is shown by the witness of the Accused. His liability is admitted, complete and

total. A host of judgments, under Section 313 of the Cr.P.C relied upon by Mr. Ponda, none of which show

that facts brought out in the evidence of the defence itself must be put to the Accused (See Ranvir Yadav Vs.

State of Bihar 2009 All M.R. (Cri)2089(S.C.); Naval Kishore Singh Vs. State of Bihar 2004 Cri.L.J.4252; Naval Kishore Singh Vs. State of Bihar 2004 SCC (Cri)

1967; Latu Mahto & Anr. Vs. State of Bihar (2008) 3 SCC (Cri) 500; Shaikh Maqsood ig Vs. State of Maharashtra 2009(2)Bom.C.R.(Cri.)273; State of Punjab Vs. Hari

Singh & Ors. (2009)2 SCC (Cri)243; State of Punjab Vs. Swaran Singh 2005 SCC(Cri)1359; Sharad Birdhichand Sarda Vs. State of Maharashtra AIR 1984 SC 1622) need

not be adverted to.

40.In a vain attempt to show a case on behalf of the company Mr. Ponda drew my attention to the copy of the

application of the company itself filed in this Court being the above Criminal Revision Application to show that it has not been verified and signed by the complainant. The application is a typewritten copy.

The Advocate for the company has not even certified it to be a true copy of the original record. The argument must be left at that notwithstanding a compilation of judgments which need not be adverted to.

41.It has been argued on behalf of the company that the

impugned orders have not applied the Probation of Offenders Act which are required to be applied in this

case since it involves an offence punishable with an imprisonment of less than 7 years under Section 360 of

Cr.P.C and since the special reasons for not applying the Probation of Offenders Act and according them special treatment thereunder are not stated, the orders

are bad. Section 360 makes special provisions only for minors or women. Those two categories of persons have

to further qualify to be first time offenders without any previous conviction show their age, without any

previous antecedents and the circumstances in which the offences were committed and the Court must be specified

that they may be released on probation of Good Conduct. If they were such offenders then alone under Section

361 of the Cr.P.C the Court would have to record special reasons for not granting them the special

treatment.

42.Mr. Ponda drew my attention to a host of decisions in various other legislations in which the Probation of

Offenders Act has been applied or in which the Probation of Offenders Act has been directly legislated not to apply (along with irrelevant decisions relating to quashing of complaints) (See Pawan Kumar & Ors. Vs.

State 2004 Cr.L.J.2310; MCD Vs. State of Delhi 2005 SCC(Cri.)1322; Balbir Singh Vs. The State of Punjab

2004 Cri.L.J.1864; Ved Prakash Vs. State of Haryana 1981 Cri.L.J. 161; Mohammad alias Biliya Vs. State of

Rajasthan 2001 SCC(Cri)1497; Masarullah Vs. State of Tamil Nadu 1983 Cri.L.J.1043; Mohamed Aziz Mohamed

Nazir Vs. State of Maharashtra AIR 1976 SC 730; Darshan Kumar Vs. Secretary, Municipal Corpn. Jabalpur AIR 1973 SC 906(V 60 C 199); Dalbir Singh Vs. State of Haryana

2004 SCC(Cri)1208; Commandant, 20th Battalion, ITB

Vs. State

Police Vs. Sanjay Binjola 2001 SCC(Cri) 897; Bishnu Deo Shaw of West Bengal AIR 1979 SC 964;

Constancio Figueiro of Guirim Vs. State Criminal Procedure Code, Sections 360 and 361; Ram Prakash Vs. The State of Himachal Pradesh AIR 1973 SC 780; Rattan

Lal Vs. The State of Punjab AIR 1965 SC 444 (V 52

72); Keshav Sitaram Sali Vs. State of Maharashtra AIR

1983 SC 291; Ratilal Prithviraj Bafna Vs. Purshottam K.Kone AIR 1979 SC 1284; Roshanali Burhanali Syed Vs.

State of Gujarat 1982 SC 784 (1); State of Orissa Vs. Debendra Nath Padhi AIR 2005 SC 359 need not be adverted to.(B).

43.Mr.Ponda argued that criminal prosecution under Section 138 of the Negotiable Instruments Act, which is in the nature of Civil proceedings, essentially qualify for applicability of the Probation of Offenders

Act, the procedure required under Section 360 of the Cr.P.C is to be followed because they are essentially

commercial disputes where the accused, more specifically those who are Directors of the Companies,

are not prone to criminality.

44.Mr.Chaudhary on behalf of the accused argued that criminal proceeding under Section 138 is not amenable to the grant of probation as held by the Single Judge

of the Kerala High Court in the case of M.V.Nalinakshan Vs. M. Rameshan 2009 ig Cr.L.J 1703. The Court has considered in detail how and why the Probation of Offenders Act would not apply to such criminal

proceedings. In that case the learned Magistrate invoked Section 4(1) of the Probation of Offenders Act

upon conviction of the accused under Section 138 of the Negotiable Instruments Act without even calling for the

report required under the aforesaid provisions upon the premise that no moral turpitude or mens rea were

involved in that case. The Court considered the impact of adverse effect on the Society consequent upon letting offenders on probation indiscriminately and upon considering the objects and provisions of the

Probation of Offenders Act. It observed that the Court would have to consider whether in a given case it was apt and suitable to the end in view and would not apply to Section 138 of the Negotiable Instruments Act as an

expedient mode of disposal of those cases. The Court considered the scheme of the Negotiable Instruments Act

which is to compensate the payee for the loss and injury suffered. It observed that the responsibility of

awarding compensation was bestowed on the Court. The act of dishonour was observed not to be an emotional

act done under any compulsion of circumstances and hence a person who dishonours the cheque cannot alone be asked to maintain good behaviour and keep peace in

the locality for any period whatsoever by executing a bond in that behalf.

45.I agree that no purpose will be served, nay it would

be a mokery of law to call upon an inanimate legal person like the accused Company or one or some of its

Directors to maintain good behaviour (though it may include honouring of cheques and also honouring of

other promises) and to keep peace. I also agree that the scheme of the Act is to compensate the payee. The

extent of the compensation has also been set out. The fine/compensation to be levied may extend to double the amount of the compensation payable under the aforesaid Section.

46.It is true that the essential lis between the parties in a criminal prosecution under Section 138 of the Negotiable Instruments Act, as in this case also, is

essentially a commercial dispute amenable to the jurisdiction of the Civil Court which could be tried

upon payment of ad valorum Court fee. It is only upon the statutory provision being made that a criminal

proceeding comes into effect.

47.The complainant in this case has sought return of his investment. He invested in a listed company. Had the agreement between the parties being honoured he would

have received a fair return on his investment as per his agreement. He has been denied that return.

ig The denial is not simplicitor made. The denial is upon a false excuse set out together with a fabrication of

another false case. Nevertheless compensatory relief to the complainant which is required to be granted in a

commercial transaction of the kind as in this case would be more appropriate than allowing him to avenge

himself by imprisoning the relevant Director of the accused Company whatever be the satisfaction that may

be derived by the Complainant from such culmination of his litigation. A case such as this is a fit case where the highest extent of compensation is required to be granted to the Complainant. That would be double

the amount of the cheque. This may be granted to the Complainant in alternative of the sentence of imprisonment which could be awarded if the accused Company and its relevant Directors see reason and make

amends by accepting this extent of compensation/fine within a reasonable period. In the absence of such

acceptance by payment the interference with the concurrent convictions made against the accused Company

and its Director would not deserve to be made as it is seen that the company has not only dishonoured the

cheque admittedly issued by the company without any reason or cause but has fraudulently set up a dishonest defence. It is seen that the statutory presumption of

the passing of consideration under the cheque issued in favour of the complainant as its holder and payee has

not been rebutted. The defence sought to be shown is moonshine. The defence does not show how and why the

cheque issued cannot be presented for payment and honoured by the company s bankers. It has not shown by

which other mode the consideration that passed under the cheque came to be legitimately paid to the

complainant so that the liability under the cheque could not then be enforced. It has not shown the

encashment of the cheque of the Company when the company claims to have issued another cheque for transfer of the shares being the cheque for Rs.6 lakhs purportedly sent to the complainant, but not encashed

by him.

48.The conviction must therefore, be maintained. The only concession that can be shown to the company would

be to defer the sentence of imprisonment for a reasonable time until the complainant is fully

compensated on account of the loss caused to the complainant by not only the dishonour of the cheque,

but a dishonest defence for such dishonour whilst monies lawfully due to him remained with the accused

Company.

49.The amount of Rs.5,50,000/- has been deposited. The

company therefore, claims that the compensation granted has been paid.

50.If the company deposits in this Court a sum of Rs.

5,00,000/- within 4 weeks from today the substantive sentence of the imprisonment of accused No.4 as the

Director of the company shall be set aside. If the company fails to deposit the said amount within 4 weeks

from today, the accused No.4 Mr. Sameet @ Sumit @ Sameer Hede, shall be taken in custody to serve the

sentence imposed upon him by the lower Court.

51.The complainant shall be entitled to withdraw Rs. 5,50,000/- already deposited in the Court by the

company.

52.The complainant shall also be entitled to withdraw the further sum of Rs.5,00,000/- to be deposited.

53.The Criminal Revision Application is disposed off

accordingly.

(SMT. ROSHAN DALVI, J.)