Dilip Keshav Narule vs Smt. Kavita Madhukar Arjunkar ...
2022 Latest Caselaw 12710 Bom

Judgment                             1         45A.revn.163.2022 judg.odt




      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR.

      CRIMINAL REVISION APPLICATION NO.163 OF 2022

      Dilip Keshav Narule,
      Aged : 47 Yrs., Occ.: Service,
      R/o. Revenue Colony, Hanuman
      Nagar, Behind Hotel Paradise King,
      Chandrapur Road, Gadchiroli,
      Tah. & Distt. Gadchiroli.               .... APPLICANT

                             // VERSUS //


1.    Smt. Kavita Madhukar Arjunkar
      (dead) legal heirs of respondent No.1

1-a) Ku Prajakta Madhukar Arjunkar,
     Aged : 22 Yrs., Occ. : Education,

1-b) Nayan Madhukar Arjunkar,
     Aged : 18 Yrs, Occ.: Education.
     Both R/o. Near Sai Mandir, Camp
     Area, Rampuri Ward, Gadichiroli
     Tah. & Dist. Gadchiroli.                    .... RESPONDENT
__________________________________________________________
     Shri A. A. Dhawas, Advocate for the applicant
     Ms Sanchita Sontakke, Advocate for the respondent
__________________________________________________________

                   CORAM : G. A. SANAP, J.

DATED : 7th DECEMBER, 2022

ORAL JUDGMENT :

1. Heard.

Judgment 2 45A.revn.163.2022 judg.odt

2. RULE. Rule made returnable forthwith. Heard finally by

consent of learned advocates for the parties.

3. In this revision application, challenge is to the judgment and

order dated 19.05.2022, passed by the learned Sessions Judge,

Gadchiroli, whereby the learned Sessions Judge dismissed the appeal filed

by the applicant challenging his conviction and sentence awarded by the

learned Judicial Magistrate First Class, Gadchiroli for the offence

punishable under Section 138 of the Negotiable Instruments Act, 1881

(For short 'N.I. Act'). Learned Judicial Magistrate First Class, Gadchiroli,

vide order dated 16.02.2017/17.02.2017, had convicted the applicant for

the offence punishable under Section 138 of the N.I. Act and sentenced

him to suffer rigorous imprisonment for three months and to pay fine of

Rs.35,00,000/- (Rs. Thirty Five Lacs Only) and in default of payment of

fine to further undergo rigorous imprisonment for 20 days.

4. In this order, for the purpose of convenience, the parties

would be referred by their nomenclature in the complaint. The applicant

was accused and the respondent- late Smt Kavita Madhukar Arjunkar was

the complainant. According to the complainant, the accused had agreed Judgment 3 45A.revn.163.2022 judg.odt

to sell plot No. 5, from Survey No. 851/2, situated at Mouza Gadchiroli,

together with the construction, to the complainant and one Prashant

Mukhruji Malode for a consideration of Rs.40,00,000/- (Rs. Forty Lacs

Only). This transaction was given finality by executing an agreement on

15.02.2015. The complainant and Prashant Malode paid a sum of

Rs.33,00,000/- (Rs .Thirty Three Lacs Only) to the accused. The

remaining amount of Rs.7,00,000/- (Rs. Seven Lacs only) was agreed to

be paid at the time of execution of sale deed. It is stated that for some

reason or the other the accused canceled the transaction and as such, the

agreement. In token of the refund of consideration he issued a Cheque

bearing No. 003551, dated 28.02.2015, for Rs.25,00,000/- (Rs. Twenty

Five Lacs only), drawn on his saving account maintained with Bank of

Maharashtra, Branch Armori, in favour of late Smt Kavita Arjunkar and

issued two cheques, bearing Nos. 899853 and 899854, of Rs.4,00,000/-

(Rs. Four Lacs only) each dated 23.03.2015, in favour of Prashant

Malode, drawn on his account maintained with Chatgaon Branch of State

Bank of India. The complainant deposited the cheque for encashment

with the Bank. The cheque was dishonored and returned on the ground

of insufficiency of funds in the account of accused. The complainant

issued statutory notice on 04.07.2015 and made a demand of amount.

The accused, despite receipt of the notice neither paid the amount nor Judgment 4 45A.revn.163.2022 judg.odt

replied the notice. The complainant, therefore, approached the learned

Judicial Magistrate First Class, Gadchiroli by filing criminal complaint

under Section 138 of the N. I. Act.

5. Pursuant to the process issued by the learned Magistrate, the

accused appeared before the Magistrate. The complainant examined

herself and one witness by name Sandip Prabhakar Muttelwar, an

attesting witness to the agreement to sell dated 15.02.2015. Learned

Magistrate found the evidence sufficient to prove the offence under

Section 138 of the N. I. Act against the accused. Learned Magistrate,

therefore, convicted and sentenced the applicant, as above. The accused

preferred the appeal in the Sessions Court. Learned Sessions Judge

dismissed the appeal and maintained and confirmed the conviction and

sentence. The correctness and legality of the said order has been

questioned in this revision application.

6. I have heard Shri A. A. Dhawas, learned Advocate for the

accused and Ms Sanchita Sontakke, learned Advocate for the

complainant. Perused the record and proceedings.

Judgment 5 45A.revn.163.2022 judg.odt

7. Learned Advocate for the accused submitted that the

accused had engaged inexperienced Advocate to defend himself and

therefore, his case was not properly defended. Learned Advocate

submitted that it has resulted into miscarriage of justice and therefore, on

this ground the judgment and order passed by the Courts below are

required to be set aside and the matter is required to be remanded back

for fresh trial. Learned Advocate further submitted that oral and

documentary evidence adduced by the complainant is not sufficient to

prove the basic ingredients of Section 138 of the N. I. Act. Learned

Advocate submitted that, therefore, the presumption, as postulated

under Section 139 of the N. I. Act, would not get automatically invoked.

Learned Advocate further submitted that the complainant has failed to

establish that she was financially well off and capable to pay such a huge

amount on the date of the alleged agreement. In the submission of the

learned Advocate, therefore, the presumption, if any, attracted in this case

would get automatically rebutted. Learned Advocate further submitted

that the case of the complainant and Prashant Malode that they paid

Rs.33,00,000/- (Rs. Thirty Three Lacs Only) on the date of agreement

and therefore, the agreement was executed, is totally unbelievable.

Learned Advocate in order to fortify this submission contended that there

is no iota of evidence with regard to the cancellation of the agreement. In Judgment 6 45A.revn.163.2022 judg.odt

the submission of the learned Advocate, therefore, the admitted and

undisputed facts and circumstances would be sufficient to rebut the

presumption invoked against him. Learned Advocate further submitted

that the learned Sessions Judge has not properly considered the oral,

documentary and circumstantial evidence and thereby committed a

patent illegality. In the submission of the learned Advocate, for the above

reasons judgment and order passed by the learned Sessions Judge has

become perverse.

8. In order to seek support to his submission, the learned

Advocate Shri A. A. Dhawas has relied upon the decision in the case of

Krishna Janardhan Bhat .v/s. Dattatraya G. Hegde, reported in, (2208) 4

SCC 54. In this case it is held that Section 139 merely raised

presumption in favour of holder of cheque that the cheque has been

issued for discharge of any debt or other liability. It is held that existence

of legally recoverable debt is not a matter of presumption under Section

139. Relying upon decision in the case of Vinay Parulekar .v/s. Pramod

Meshram, reported in, (2008) 2 Mh.L.J.115 and M. Ibrahim .v/s.

Gurudas H. Borkar and Anr., reported in, (2010) 5 Mh. L. J. 137, it is

submitted that the accused is not required to lead evidence in rebuttal.

The accused can rely on the undisputed and admitted material and Judgment 7 45A.revn.163.2022 judg.odt

circumstances on record and on the basis of the same he can rebut the

presumption. In this case, it is held that in order to rebut the

presumption it is not necessary for the accused to lead the evidence and

disprove the fact. It is further held that weakness of the defence evidence

certainly cannot be considered by the prosecution and the prosecution

must stand on its own legs.

9. Learned Advocate for the complainant submitted that

learned Sessions Judge has made threadbare analysis and appreciation of

evidence and on doing so found the evidence reliable and worth credible

to prove the basic ingredients of Section 138 of the N. I. Act. Learned

Advocate relied upon the decision in the case of Rohitbhai Jivanlal

Patel .v/s. State of Gujrat and Ant., reported in, (2019) 18 SCC 106 and

submitted that when the material on record is sufficient to draw the

presumption against the accused, the factors relating to source of funds

would not become relevant consideration. In this case, the Hon'ble Apex

Court has held that when the presumption under Section 139 is drawn,

the factors relating to want of documentary evidence in the form of

receipts or accounts or want of evidence as regards source of funds are not

of relevant consideration while examining if the accused has been able to

rebut the presumption or not. Relying upon the decision in the case of P.

Judgment 8 45A.revn.163.2022 judg.odt

Rasiya .v/s. Abdul Nazer and Anr., reported in, 2022 SCC OnLine SC

1131, the learned Advocate submitted that on proof of facts postulated

under Sections 138 and 139 the Court shall draw the presumption unless

the contrary is proved. In this case, it is held that as per mandate of

Section 139 of the N. I. Act it shall be presumed, unless the contrary is

proved, that the holder of a cheque received the cheque of the nature

referred to in Section 138 for discharge, in whole or in part, of any debt

or other liability. On the same point learned Advocate relied upon the

decision in the case of Kalamani Tex and Anr. .v/s. P. Balasubramanian,

reported in, (2021) 5 SCC 283. Learned Advocate for the complainant

on the specific issue of financial capacity of complainant on the date of

issuance of cheques heavily relied upon the decision in the case of APS

Forex Services Private Limited .v/s. Shakti International Fashion Linkers

and ors., reported in, (2020) 12 SCC 724, wherein it is held that

whenever the accused has questioned the financial capacity of

complainant in support of his probable defence, despite the presumption

under Section 139 of the N. I. Act with regard to the legally enforceable

debt and such presumption being rebuttable, the onus shifts again on

complainant to prove his financial capacity and at that stage, the

complainant is required to lead the evidence to prove his financial

capacity. Learned Advocate submitted that the evidence adduced on Judgment 9 45A.revn.163.2022 judg.odt

record is sufficient to invoke the presumption against the accused, as

provided under Section 139 of the N. I. Act. There is no material on

record to rebut the presumption. Learned Advocate further submitted

that while exercising the revisional jurisdiction the scope of inquiry is

very limited. The appreciation of evidence cannot be done as a matter of

right and in a routine manner. Besides, the learned Advocate submitted

that the evidence has been properly appreciated by both the Courts

below and therefore, the concurrent finding of facts arrived at by the

Courts below does not warrant interference.

10. In order to appreciate rival submissions, I have gone through

the record and proceedings and particularly the judgment and order

passed by the learned Sessions Judge. It is undisputed that the accused

has undergone the substantive sentence as well as sentence in default of

payment of fine. Learned Sessions Judge has taken this fact into

consideration while dealing with the prayer made for remand of the

matter. In the opinion of the learned Sessions Judge, the retrial on

remand can result into prejudice to the accused. It is observed that since

the accused has undergone the substantive sentence then the further

sentence on retrial would be hit by the principle of double jeopardy. I

am in fully agreement with the conclusion arrived at by the learned Judgment 10 45A.revn.163.2022 judg.odt

Sessions Judge. Even otherwise on this ground, the well reasoned

judgment and order cannot be set aside and the matter cannot be

remanded back. If the Courts start interferring with the well reasoned

judgment and order on such ground, then this ground will be routinely

raised before the Higher Court for setting aside the judgment and order.

On both the counts, I am not convinced with the submission, on this

point. Therefore, the submission deserves to be rejected.

11. Before proceeding to deal with the submissions touching the

merits of the matter, it would be apposite to state that the scope of the

revisional jurisdiction is very limited. The appreciation of the evidence,

while exercising revisional jurisdiction, cannot be made as a matter of

right and routinely. In order to undertake the exercise of threadbare re-

appreciation of evidence the party concerned shall make out a case that

the evidence adduced by the party has not at all been considered or the

evidence has not been properly considered. It is to be noted that the

exercise of re-appreciation of evidence cannot be undertaken on the

ground that based on the same evidence two views are possible, one being

supporting the contention of the aggrieved party. It is a settled legal

position that in the exercise of revisional jurisdiction the evidence cannot

be re-appreciated as a matter of course and for asking and to dislodge the Judgment 11 45A.revn.163.2022 judg.odt

concurrent findings of the fact by undertaking such exercise. In my view,

while appreciating submissions advanced by the learned Advocate for the

accused the above legal position would be required to be borne in mind.

12. The Courts below on the basis of the evidence have held

that the complainant has proved the execution of agreement by the

accused. The Courts below have relied upon the evidence of the

complainant and independent witness, who was an attesting witness to

the agreement to record a finding that the contents of the agreement to

sell have been proved. The submission that there is no separate

document of cancellation of the agreement does not hold any water

because the issuance of cheques within a period of one month from the

execution of agreement in favour of the complainant and one Prashant

Malode would be sufficient material to negative this submission. It is

further pertinent to note that out of Rs.40,00,000/- (Rs. Forty Lacs only),

the amount of Rs.33,00,000/- (Rs. Thirty Three Lacs only) were paid

under the agreement, as an earnest money. The complainant and

Prashant Malode, in the absence of cancellation of any agreement and the

issuance of cheques, would have definitely sued the accused for specific

performance of the agreement. In my view, issuance of cheques within a

month from the date of execution of agreement is the important piece of Judgment 12 45A.revn.163.2022 judg.odt

evidence of the cancellation of agreement. It is further pertinent to note

that in the backdrop of the proof of the contents of the agreement there

was dual responsibility on the shoulder of the accused. He was required

to prove as to what happened to the agreement, which specifically

mentioned that the amount of Rs.33,00,000/- (Rs. Thirty Three Lacs

only) was paid to him and second, he was under an obligation to establish

the reasons for issuance of cheques in favour of the complainant and

Prashant Malode. The total amount of the three cheques issued come to

Rs.33,00,000/- (Rs. Thirty Three Lacs only). Therefore, in my view, this

circumstance cannot be used to rebut the presumption. On the contrary,

this would fortify the contention of the complainant on the point of

execution of the agreement and the subsequent cancellation of the

agreement and the refund of the consideration by issuing the cheques in

favour of the complainant and Prashant Malode.

13. The accused in the cross examination has made a feeble

attempt even to deny his signature on the cheque. Learned Advocate for

the complainant drew my attention to the Question No. 21 put to the

accused in his Statement recorded under Section 313 of the Code of

Criminal Procedure and the answer given to the said question. While

answering this question he has stated that his two cheques were Judgment 13 45A.revn.163.2022 judg.odt

misplaced from his bag. He felt that the cheques were in custody of the

complainant, therefore, he made demand of the cheques from the

complainant. It is to be noted that in order to substantiate his half-

hearted defence, the accused was required to step into the witness box

and make a categorical statement that the cheque does not bear his

signature. If it is the case of the accused that the cheque does not bear his

signature then he would have made request to the Court to refer the

cheque for examination to the handwriting expert. In my view, over all

conduct of the accused is not consistent with his defence.

14. There is one more circumstance to reject this half-hearted

defence of the accused. There is ample evidence on record that the

cheque was presented for encashment by the complainant to the Bank

from the account of the accused. The Bank returned the cheque with the

return memo. In the return memo, the Bank informed the complainant

that there was no sufficient amount in the account of the accused to

honor the cheque. The cheque is at Exhs. 11. Exh. 13 is the statutory

notice issued by the complainant to the accused. Notice was received by

the accused on 06.07.2015. The accused did not reply the said notice.

He did not pay the amount of cheque. It is to be noted that this is a

strong circumstance against the accused. The amount of the cheque and Judgment 14 45A.revn.163.2022 judg.odt

the relevant facts related there to mentioned in the notice would have

given a wake up call to the accused. It is to be noted that if the accused

had not issued cheques and the cheques had been forged, as sought to be

made out by him, then by applying the standard of prudent person, he

would have immediately protested this act of the complainant by lodging

the police complaint and also by giving a categorical reply to the said

notice. In my view, this fact if appreciated properly would show that it

negatives the contention of the accused.

15. The oral evidence on record is sufficient to accept the case of

the complainant with regard to the execution of the agreement at Exh. 10

by the accused. The facts stated in the agreement clearly indicate that the

amount of Rs.33,00,000/- (Rs. Thirty Three Lacs only) was paid by the

complainant and Prashant Malode to the accused. This fact has been

fortified by issuance of the cheques of the same amount in favour of the

complainant and Prashant Malode. On the basis of this evidence, the

complainant has proved that she received cheque for the discharge, in

whole or in part, of the liability of the accused. In the backdrop of this

evidence, the presumption postulated under Section 139 of the N. I. Act

would be required to be invoked against the accused. The accused has

not adduced any oral or documentary evidence to rebut this Judgment 15 45A.revn.163.2022 judg.odt

presumption. His conduct is not consistent with the case sought to be

made out for the first time in the cross examination. In the facts and

circumstances, on both the counts the submissions advanced by the

learned Advocate for the complainant are supported by the law laid down

in the decisions relied upon (supra). In the fact and circumstances, in my

view, the revision application seems to be one more feeble attempt on the

part of the accused. The consideration of the material on record clearly

indicates that the said material has been properly considered and

appreciated by the Courts below. On going through the judgment and

order passed by the learned Sessions Judge, I am fully satisfied that no

error or perversity has been committed while appreciating the material

on record. The well reasoned judgment does not warrant interference.

As such, I conclude that there is no substance in the revision.

16. The criminal revision application, therefore, stands rejected.

Rule stands discharged.

( G. A. SANAP, J.) Namrata

Signed By:NAMRATA YOGESH DHARKAR P. A.

High Court Nagpur Signing Date:09.12.2022 17:50