Bombay High Court
Vijaykumar Gulabchand Baldava vs Prakash Ambadas Kulkarni And Anr on 21 December, 2016
Bench: Z.A. Haq
(1) crirev139.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO. 139 OF 2016
WITH
CRIMINAL WRIT PETITION NO. 700 OF 2016
* * * * *
CRIMINAL REVISION APPLICATION NO. 139 OF 2016
Vijaykumar Gulabchand Baldava ..Applicant
Age. 55 years, Occ. Business,
R/o. Marvadi Galli, Shevgaon,
Tq. Shevgaon, Dist. Ahmednagar.ig Versus
1. Prakash Ambadas Kulkarni ..Non-applicants
Age.65 years, Occ. Retired & Agri.
R/o. Old Press, Shevgaon,
Tq.Shevgaon, Dist. Ahmednagar.
2. State of Maharashtra
WITH
CRIMINAL WRIT PETITION NO. 700 OF 2016
Vijaykumar Gulabchand Baldava ..Petitioner
Age. 55 years, Occ. Business,
R/o. Marvadi Galli, Shevgaon,
Tq. Shevgaon, Dist. Ahmednagar.
Versus
1. Prakash Ambadas Kulkarni ..Respondents
Age.65 years, Occ. Retired & Agri.
R/o. Old Press, Shevgaon,
Tq.Shevgaon, Dist. Ahmednagar.
2. State of Maharashtra
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(2) crirev139.16
Mr.P.R. Katneshwarkar, Advocate h/f. Mr.Nikhil Jaju,
Advocate for the applicant/petitioner.
Non-applicant No.1/respondent No.1 in person.
Mr.A.V. Deshmukh, A.P.P. for non-applicant/respondent-
State.
CORAM : Z.A. HAQ,J.
DATED : 21.12.2016
ORAL JUDGMENT :-
. Heard Mr. P.R. Katneshwarkar, Advocate h/f. Mr.
Nikhil Jaju, Advocate for the applicant, non-applicant
No.1 in person and Mr. A.V. Deshmukh, learned A.P.P. for
non-applicant No.2/State.
. The applicant/accused has challenged the
judgment passed by the Sessions Court by which the appeal
filed by the accused is dismissed and the judgment passed
by the learned Magistrate convicting the accused for the
offence punishable under section 138 of the Negotiable
Instruments Act is maintained.
02. The subordinate Courts have concurrently
accepted the claim of the non-applicant No.1/complainant
that the accused had given cheque for Rs.5 lakhs, that
the cheque was dishonoured, that inspite of notice the
accused had not paid the amount and after examining that
all the pre-requisites of Section 138 of the Negotiable
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Instruments Act have been complied with, the subordinate
Courts have concluded that the accused is liable for
convictioin for the offence punishable under section 138
of the Negotiable Instruments Act.
03. The learned Advocate for the accused has
submitted that the findings recorded by the subordinate
Courts that the accused is liable for conviction for the
offence punishable under section 138 of the Negotiable
Instruments Act are not sustainable as the subordinate
Courts have not appreciated the evidence on record and
the fact that the complainant has failed to establish
that the complainant had paid the amount of Rs.5 lakhs to
the accused and the cheque in question was given to
satisfy the legal liability. To support the submission,
the learned Advocate has referred to the cross-
examination of the complainant, the cross-examination of
Dashrath (P.W.3) and the cross-examination of Vasant
(P.W.4) - employee of the bank. Relying on the cross-
examination of the complainant and above witnesses it is
argued that the complainant has failed to prove beyond
doubt that the entries on the cheque are in the
handwriting of the accused. It is urged that the
handwriting on the pay slip along with which the cheque
was deposited and the hand-writing on the cheque is same
and in the cross-examination Vasant (P.W.4) has stated
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that the pay-slip along with which the cheque was
deposited is filled up by the complainant in his hand-
writing and therefore it is clear that the hand-writing
on the cheque is of the complainant. Referring to the
cross-examination of Vijay (P.W.5) who was working as
Tahsildar at Shevgaon, the learned Advocate has submitted
that the claim of the complainant that he was having Rs.5
lakhs in July, 2005, when the amount said to have been
given to the accused is falsified. It is argued that the
Sessions Court has committed error by not accepting the
case of the accused on the ground that the accused has
not led any evidence to substantiate his defence. It is
submitted that the accused is not required to lead any
evidence to substantiate his defence and the accused can
substantiate his defence on the basis of the material on
record and the admissions brought in the cross-
examination of the witnesses examined on behalf of the
complainant. In support of the submissions, reliance is
placed on the following judgments :-
(i) Judgment given by the Supreme Court in
the case of Krishna Janardhan Bhat Vs.
Dattatraya G. Hegde, AIR 2008 S.C.1325.
(ii) Judgment given by this Court in the
case of Vinay Parulekar Vs. Pramod Meshram,
2008(2) Mh.L.J.115.
(iii) Judgment given by the Supreme Court in
the case of Kamlesh Prabhudas Tanna & Anr. Vs.
State of Gujarat, AIR 2014 SC (Supp) 1608.
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(iv) Judgment given by this Court in the
case of Rajendraprasad Gangabishen Porwal Vs.
Santoshkumar Parasmal Saklecha & Anr., 2008
Cri.L.J.2955.
. It is further argued that the Sessions Court has
transgressed its jurisdiction by directing the accused to
pay interest at the rate of 18% on the amount of Rs. 5
lakhs, the interest being chargeable from the date of the
filing of the complaint. It is submitted that the
Sessions Court which is the first appellate Court is
under obligation to consider all the material on record
and if required, re-appreciate the evidence, however, in
the present case the Sessions Court has failed to
discharge its legal obligation.
. It is prayed that the impugned judgment be set
aside, the applicant be acquitted of the offence
punishable under section 138 of the Negotiable
Instruments Act and the complainant filed by the non-
applicant No.1 be dismissed.
04. The non-applicant No.1 was represented by
Advocate Mr. S.R. Andhale, however, when the matter
started, the non-applicant No.1 expressed his desire to
address the Court in person and therefore Mr. S.R.
Andhale, Advocate filed pursis praying that he be
discharged. Non-applicant No.1 argued the matter.
(6) crirev139.16
. The non-applicant No.1 has supported the
impugned judgment. Relying on the provisions of Section
30 and Section 80 of the Negotiable Instruments Act, it
is submitted that the Sessions Court has rightly directed
the accused to pay interest at the rate of 18% p.a. It
is prayed that the Revision Application be dismissed with
exemplary costs.
05.
After going through the impugned judgments, I
find that the considerations by both the subordinate
Courts are proper and cannot be faulted with. Though
much is tried to be made out on the point that the
complainant has failed to establish that the cheque was
given by the accused to discharge legal liability, the
accused relies only on certain minor discrepancies and
omissions to substantiate his defence. The presumption
under section 118 and section 139 of the Negotiable
Instruments Act cannot be overlooked. In my view, the
complainant has discharged the preliminary burden of
showing that in July, 2005, he had an amount of Rs.5
lakhs (Rs.3 lakhs and odd having been received towards
his retirement benefits and the balance amount of Rs. 2
lakhs having been withdrawn from the Central Bank) by
leading evidence producing documents and examining the
Tahsildar, Shevgaon. As the complainant has discharged
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the preliminary burden, the accused was under an
obligation to rebut the legal presumption under section
118 and section 139 of the Negotiable Instruments Act. I
find that the accused has failed to discharge the burden.
06. As the conclusions of the subordinate Courts are
proper and based on the appreciation of the material on
record, I see no reason to interfere with the findings
recorded by the subordinate Courts that the accused is
liable for conviction for the offence punishable under
section 138 of the Negotiable Instruments Act. The
judgments relied upon by the learned Advocate for the
applicant/accused are of no assistance to the applicant.
. However, I find that the directions given by the
Sessions Court to the applicant/accused to pay interest
at the rate of 18% p.a. are unsustainable. The non-
applicant No.1 has not been able to point out that the
Court while trying the accused for the offence punishable
under section 138 of the Negotiable Instruments Act, has
power and jurisdiction to direct the accused to pay
interest. The directions in this regard are required to
be set aside.
. Hence, the following order :-
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(i) The conviction of the applicant for
the offence punishable under section 138 of the
Negotiable Instruments Act is maintained.
(ii) The clause (B) of the operative part
of the order passed by the learned Additional
Sessions Judge is set aside and is substituted
by following :-
"The applicant/accused shall pay compensation of
Rs.9,00,000/- (Rupees Nine Lakhs) out of which
an amount of Rs.8,00,000/- (Rupees Eight Lakhs)
shall be given to the non-applicant No.1-Prakash
Ambadas Kulkarni and the balance amount of
Rs.1,00,000/- (Rupees One Lakh) shall be
deposited with the State of Maharashtra.
(iii)The Criminal Revision Application is
dismissed with costs quantified at Rs.50,000/-
(Rupees Fifty Thousand) to be paid by the
applicant/accused to the non-applicant No.1,
within two months.
(iv) If any amount is deposited in this
Court by the applicant/accused as per the
impugned judgment, the same shall be adjusted.
(9) crirev139.16
(v) The Criminal Writ petition is
dismissed.
[Z.A. HAQ,J.]
snk/2016/DEC16/crirev139.16
