Bombay High Court
Aris @ Arish Mohammad Shaikh vs Abhaykumar Bansilal Mutha And Anr on 16 March, 2022
Bench: M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL REVISION APPLICATION NO.13 OF 2018
. Shri Abhaykumar Bansilal Mutha
Age: 62 years, Occu.: Business,
R/o. Shivaji Raod, Taluka : Shrirampur,
Dist.Ahmednagar. ..Applicant
(Orig. Complainant)
VERSUS
1. Aris @ Arish Mohammad Shaikh
Age: 55 years, Occu.: Business,
R/o. : C/o.Superb Battery Plates,
Sangamner Road, In front of Gajanan
Vasahat, At. Post. Taluka - Shrirampur,
District - Ahmednagar. ..Respondent No.1
(Orig. Accused)
2. State of Maharashtra ..Respondent No.2
(Respondent No.2 is deleted as per
the order of Hon'ble Court
dated 27th June 2018)
...
Advocate for Applicant/Complainant :Smt. Rashmi S. Kulkarni
Advocate for Respondent/Accused : Shri Avinash N.Barhate Patil
(absent)
...
WITH
CRIMINAL REVISION APPLICATION NO.177 OF 2021
. Aris @ Arish Mohammad Shaikh
Age: 55 years, Occu.: Business,
R/o. : C/o.Suparb Battery Plates,
Sangamner Road, In front of Gajanan
Vasahat, Shrirampur, Tq. Shrirampur,
District - Ahmednagar. ..Applicant
(Orig. Accused)
VERSUS
1. Shri Abhaykumar Bansilal Mutha
Age: 62 years, Occu.: Business,
R/o. Shivaji Raod, Shrirampur,
::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 06:38:30 :::
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Taluka : Shrirampur,
Dist.Ahmednagar. ..Respondent No.1
(Orig. Complainant)
2. The State of Maharashtra ..Respondent No.2
(Respondent No.2 is deleted as per
the order of Hon'ble High Court
dated 27th June 2018)
...
Advocate for Applicant/Accused : Shri Avinash N.Barhate Patil
(absent)
Advocate for Respondent/Complainant : Smt. Rashmi S. Kulkarni
...
CORAM : M.G.SEWLIKAR, J.
...
RESERVED ON : 10th December, 2021
PRONOUNCED ON : 16th March, 2022
JUDGMENT :-
1. Criminal Revision Application No.13 of 2018 is preferred by
the original complainant and Criminal Revision Application
No.177 of 2021 is preferred by the original accused. Both these
revisions are preferred against the order of the learned Additional
Sessions Judge, Shrirampur, District Ahmednagar, whereby
conviction of the accused recorded by the learned Judicial
Magistrate First Class (JMFC) has been maintained but
substantive sentence is modifed.
2. In this order parties are referred to as per their original
status in the trial Court.
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3. Facts in brief are that on the request of the accused - Aris
@ Arish Mohammad Shaikh, complainant - Abhaykumar Bansilal
Mutha paid Rs.2,50,000/- to accused as a hand-loan on 28 th
December 2004. Accused assured that he would repay the
amount within two days. Accused gave post-dated cheque dated
31st December 2004 to the complainant. On 31 st December
2004, complainant deposited the cheque in the Bank which was
dishonoured on account of insufcient funds. On 1 st January
2005, notice for demanding the amount was sent by the
complainant to the accused. On 3 rd January 2005, accused
received the notice. However, accused did not pay the amount
of Rs.2,50,000/- and therefore, on 16 th February 2005
complainant fled a private complaint under Section 138 of the
Negotiable Instruments Act (N.I.Act) bearing STC No.127 of 2005.
4. Particulars of ofence were read over and explained to the
accused. He pleaded not guilty to it and came to be tried.
Accused admitted to have issued the cheque but he contended
that it was issued on 1st February 2004 and the complainant
altered it to 31st December 2004. The cheque was, therefore,
barred by limitation as it was issued on 1st February 2004.
5. The learned JMFC, Shrirampur, after recording evidence
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and after recording statement of the accused under Section 313
of the Code of Criminal Procedure, by his order dated 13 th August
2012, recorded conviction under Section 138 of the N.I.Act and
sentenced the accused to sufer rigorous imprisonment for three
months with fne of Rs.2,60,000/-, in default to sufer rigorous
imprisonment for two months. It further directed that
Rs.2,50,000/- be paid as compensation to the complainant.
6. Accused preferred Criminal Appeal bearing No.22 of 2012
against this order of the learned JMFC, Shrirampur. The learned
Additional Sessions Judge, Shrirampur, maintained conviction
and the amount of fne. However, the learned Additional
Sessions Judge set aside the substantive sentence on the ground
that sentence awarded was simple imprisonment. This order was
passed by the learned Additional Sessions Judge on 13
December, 2017. This order is impugned in this revision.
7. Criminal Revision Application No.13 of 2018 is preferred by
the complainant. Accused has preferred Criminal Revision
Application No.177 of 2021 challenging the order of learned
Additional Sessions Judge maintaining conviction. Since both
these revisions arise out of the same order of the learned
Additional Sessions Judge, they are being disposed of by this
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common order.
8. Heard Smt.Rashmi S.Kulkarni, learned counsel for the
complainant and Shri Avinash Barhate Patil, learned counsel for
the accused.
9. Smt.Kulkarni, learned counsel submitted that accused has
not denied his signature on the cheque. He has not denied that
he did not draw the cheque. His only defence is that date of
cheque was 1st February 2004 and it was altered to 31 st
December 2004. She submitted that report of the Handwriting
Expert was called but Handwriting Expert was not examined.
Therefore, the report carries no value. She submitted that both
the Courts have held that there was legally enforceable debt and
therefore, cheque was issued in discharge of legally enforceable
debt. She further submitted that learned Additional Sessions
Judge committed gross error in setting aside the substantive
sentence erroneously presuming that the sentence awarded was
simple imprisonment. Infact, if order of the learned trial Court is
perused, it would show that the sentence awarded was rigorous
imprisonment. She submitted that if substantive sentence is not
awarded, accused will not have any deterrence to pay the
amount awarded by the learned trial Court. She submitted that
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therefore, interference by this Court is necessary in the order of
the learned Additional Sessions Judge.
10. Shri Barhate, learned counsel for the accused submitted
that complainant changed the date from 1st February 2004 to 31st
December 2004. He further submitted that if date 1 st February
2004 is reckoned, the cheque would have lost its validity. Just to
bring it within the validity period, complainant altered date to
31st December 2004. He further submitted that accused issued
cheque of Superb Battery Plates. He further submitted that
income tax returns were not produced to show that this amount
was lent to the accused by the complainant as a hand-loan. He
submitted that there was no legally enforceable debt. Therefore,
accused has been erroneously convicted by the learned JMFC and
conviction has been erroneously confrmed by the learned
Additional Sessions Judge. He submitted that in the facts and
circumstances of the case, the learned Additional Sessions Judge
was perfectly justifed in setting aside the substantive sentence.
11. I have given thoughtful consideration to the submissions of
both the learned counsel.
12. Both the Courts have held that accused did not dispute
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drawing of the cheque and his signature thereon. It is also not in
dispute that notice was issued within the stipulated period and
complaint was fled within limitation. The only point that was
canvassed was that there was alteration in the date of the
cheque so as to bring it within the validity period. Second
defence raised was that there was no legally enforceable debt.
Both, the learned JMFC and the learned Additional Sessions Judge
have given cogent reasons for rejecting these arguments.
13. In terms of Section 139 of the N.I.Act, when the drawer of
the cheque admit issuance of cheque, a presumption is raised
that it was issued for legally enforceable debt. Section 139 of
the N.I.Act reads as under :
"139. Presumption in favour of holder - 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
the discharge, in whole or in part, of any debt or other liability."
14. Thus, Section 139 of the N.I.Act enables the Courts to raise
a presumption that the holder of a cheque received the cheque,
of the nature referred to in Section 138, for the discharge, in
whole or in part, of any debt or other liability. It is for the
accused to prove that it was not issued for any legally
enforceable debt.
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15. True it is that accused need not step into witness box to
prove that there was no legally enforceable debt. He can prove it
from the cross-examination of the witnesses and other evidence
that there was no legally enforceable debt. In the case at hand,
except alleging that there was alteration in the date, nothing has
been brought on record to show that there was no legally
enforceable debt. Report of the Handwriting Export was received
indicating therein that there was alteration. The learned
Additional Sessions Judge has observed that the Handwriting
Expert was not examined. Therefore, no importance can be
attached to this report of Handwriting Expert. The learned trial
Court has observed that the only defence taken by the accused
during the cross-examination of the complainant is that the
cheque was issued on 1st February 2004 and date was altered by
the complainant to 31st December 2004. Thus, in the cross-
examination also, accused could not bring on record that there
was no legally enforceable debt for issuance of cheque. The
learned Additional Sessions Judge has also given cogent reasons
for rejecting this argument of the accused.
16. Revisional Court cannot re-appreciate evidence unless it is
shown that the fndings of the learned trial Court and the learned
Appellate Court are perverse. From the discussions made above,
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it cannot be said that the fndings of the learned trial Court and
learned Appellate Court are perverse. Therefore, I do not fnd
any infrmity in the appreciation of evidence made by the learned
trial Court and the learned Appellate Court.
17. Learned Additional Sessions Judge, while confrming the
conviction recorded by the learned JMFC, set aside the
substantive sentence. The learned Additional Sessions Judge did
not assign any reason for setting aside the substantive sentence
of rigorous imprisonment of three months. In paragraph No.12,
learned Additional Sessions Judge made the following
observations :-
"12] Considering the earlier discussion, the fndings
recorded by the learned J.M.F.C. in the impugned Judgment are
correct and proper. Therefore, there is no need of interference in
it at the hands of this Court. However, in the operative part
clause 2, it reveals that imprisonment of three months is
awarded.
Considering the submission of learned advocate Shri
J.B.Shaikh, for the appellant / accused regarding the nature and
length of litigation, as well as age, responsibility of family, he is
handicapped etc., some leniency is required to be shown to the
extent of imprisonment and hence, to that extent only
interference is necessary by way of modifcation in the operative
part of the impugned Judgment which meets the ends of justice.
The learned Advocate Shri Kothari for complainant has opposed
for the same."
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18. From these observations, it cannot be said that the learned
Additional Sessions Judge has given cogent reasons. No
documentary proof was placed on record to show that accused is
a handicapped person. His age shown to be 55 years. Thus, at
the time of deciding the appeal, he was not even Senior Citizen.
Therefore, the leniency shown by the learned Additional Sessions
Judge was wholly unwarranted.
19. Smt.Kulkarni, learned counsel for the complainant placed
reliance on the case of Satyanarayan Motilalji Malpani Vs.
Nandlal Sivnarayan Bhutada [MANU/MH/0884/2012]. In the said
decision, this Court placed reliance on the case of Suganthi
Suresh Kumar Vs. Jagdeeshan [2002 Cri.L.J. 1003 (1)]. In
paragraph Nos.5 and 6, this Court recorded following
observations :-
"5. Pertinent observations made by the Honble Apex Court at
para 12 of the judgment delivered in Suganthi Suresh Kumars
case are re-produced herein below.
12. The total amount covered by the cheques involved in the
present two case was Rs.4,50,000/-. There is no case for the
respondent that the said amount had been paid either during
the pendency of the cases before the trial Court or revision
before the High Court or this Court. If the amounts had been
paid to the complainant there perhaps would have been
{11} CRI RA 13 OF 2018 & ANR
justifcation for imposing a fee-bite sentence as had been
chosen by the trial court. But in a case where the amount
covered by the cheque remained unpaid it should be the look
out of the trial Magistrate that the sentence for the ofence
under Section 138 should be of such a nature as to give proper
efect to the object of the legislation.B No drawer of the cheque
can be allowed to take dishonour of the cheque issued by him
light heartedly. The very object of enactment of provisions like
138 of the Act would stand defeated if the sentence is of the
nature passed by the trial Magistrate. It is a diferent matter if
the accused paid the amount at least during the pendency of
the case.B
20. This Court further observed in paragraph No.7 thus :-
"7. What should have been the minimum sentence is the matter
which needs to be resolved with reference to objects and reasons
for enacting penal provisions in case of dishonour of cheques due
to insufciency of funds in the account of the drawer of the
cheque vide Negotiable Instrument laws (Amendment Act), 1988.
This has become imperative for the reason that the Courts
awarding the sentence for the ofence under section 138 are
required to award sentences of such nature as to give proper
efect to the object of the legislation as observed in Suganthi
Suresh Kumars case. Adverting to the objects and reasons for
incorporating the penalties in case of dishonour of cheque due to
insufciency of funds in the account of the drawer of the cheque,
in the Negotiable Instruments Act, 1881, it can be seen that such
provisions were incorporated with a view to encourage the
culture of use of cheques and enhancing credibility of the
instrument. Needless to state that the credibility of the
instrument i.e. cheque issued can only be enhanced if the
payment thereunder is assured. In the instant case, therefore, the
complainant had a minimum expectation, and reasonably so, of
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the payment due under the said cheque. This fact has been
completely overlooked by the learned trial Court leading it to land
itself in error."
21. In the case at hand, the learned Additional Sessions Judge
awarded a fee-bite sentence. Smt.Kulkarni, learned counsel for
the complainant is right in contending that accused did not pay
the amount since the year 2004 and if deterrence of punishment
of imprisonment is removed, there is no possibility of the
accused paying the amount. Award of sentence should be to
give proper efect to the object of the legislation. By awarding
fee-bite sentence, object of Section 138 of the N.I.Act is
frustrated. Therefore, the learned Appellate Court committed
error in setting aside the substantive sentence. Therefore, the
order of the learned Appellate Court needs interference to this
extent. In view of this, following order is passed :-
ORDER
(i) Criminal Revision Application No.13 of 2018 is allowed.
(ii) The order of the learned Additional Sessions Judge,
Shrirampur dated 13th December 2017 passed in Criminal
Appeal No.22 of 2012, to the extent of setting aside
substantive sentence, is set aside. Rest of the order is
confrmed.
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(iii) The order of the learned JMFC. Shrirampur dated 13 th
August 2012 passed in STC No.127 of 2005 of awarding
three months rigorous imprisonment is restored.
(iv) Criminal Revision Application No.177 of 2021 is
dismissed.
( M.G.SEWLIKAR )
JUDGE
SPT
