Bhaurao S/O Uttamrao Mhala vs M/S Sai Auto Agencies, Thr. Its ...
2023 Latest Caselaw 1670 Bom

                                     30 revn.11.21 mahesh rai NI act.odt
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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               NAGPUR BENCH, NAGPUR.

     CRIMINAL REVISION APPLICATION NO.11 OF 2021


1.         Bhaurao s/o Uttamrao Mhala,           ... APPLICANT
           Aged about- 58 years,
           Occ. Agriculturist,
           R/o Asadpur, Tq. Achalpur,
           Dist. Amravati (In Jail)

                            // VERSUS //

1.         M/s Sai Auto Agencies,        ...          RESPONDENT
           Through its Partner-
           Dnyandeo Ramdas Rane,
           Aged 50 years, Occ. Business,
           R/o Sai Nagar, Amravati

____________________________________________________
Shri Mahesh Rai, Advocate for the applicant.
Shri Ritesh N. Bade, Advocate for the respondent.
____________________________________________________


CORAM           :- G. A. SANAP, J.
DATE            :- 20/02/2023


JUDGMENT

1. Rule. Rule made returnable forthwith. Heard finally by

consent of learned Advocates for the parties.

2. In this revision application challenge is to the judgment

and order passed by the learned Additional Sessions Judge, 30 revn.11.21 mahesh rai NI act.odt

Amravati in Criminal Appeal No.145/2016 dated 16.01.2021,

whereby the learned Judge was pleased to dismiss the appeal and

confirm the conviction and sentence of the applicant awarded by

the learned Judicial Magistrate First Class, Court No.1, Amravati

in Sum. Criminal Case No.6023/2006 for the offence punishable

under Section 138 of the Negotiable Instruments Act, 1881 (for

short "the N.I. Act"). The applicant was sentenced by Magistrate

to suffer simple imprisonment for three months and to pay

compensation of Rs.1,55,000/-, in default to suffer simple

imprisonment for one month.

3. The facts are as follows:-

In this judgment, the parties would be referred by their

nomenclature in the complaint. The applicant is the accused and

respondent is the complainant. The complainant is the partner of

M/s Sai Auto Agency at Badnera Road, Amravati, which deals in

sell of Massey Ferguson Tractor. The accused on 19.10.2005

purchased a Massey Ferguson Tractor from him for a sum of

Rs.4,60,490/-. The accused had no money to pay to the

complainant. He wanted to avail the loan facility. Considering the

cut throat competition in the business, the complainant handed 30 revn.11.21 mahesh rai NI act.odt

over delivery of one tractor to the accused without taking any

advance. On 10.12.2005, the accused informed the complainant

about the sanction of his loan case by the bank. However, as per

the terms and conditions between accused and the bank, the

accused was required to deposit Rs.1,45,000/- in the bank. The

accused, therefore, requested the complainant to advance

Rs.1,45,000/- to him. On 14.12.2005 the complainant gave hand

loan of Rs.1,45,000/- to the accused by demand draft No.720818

dated 14.12.2005. In respect of this transaction, accused executed

Usanwar Chitti in favour of the complainant, which is marked as

Exh.63. The accused for repayment of this amount, issued a

cheque bearing No.034591 dated 30.04.2006 drawn on his

account maintained with the Union Bank of India, Branch

Asadpur.

4. The complainant deposited the said cheque for

encashment in his bank on 28.06.2006. The bank informed the

complainant about dishonour of cheque on the ground of

insufficiency of funds in the account of the accused. The

complainant, therefore, issued a notice to the accused on

09.10.2006 and demanded the money. The accused received the 30 revn.11.21 mahesh rai NI act.odt

said notice on 14.10.2006. The accused, on receipt of the notice,

neither paid the amount nor replied the notice. The complainant,

therefore, was constrained to file the complaint in the Court of

Judicial Magistrate First Class, Court No.1, Amravati.

5. Learned Judicial Magistrate First Class, Court No.1,

Amravati, on the basis of the material issued the process against

the accused. In the trial, the complainant examined himself as a

sole witness. The accused examined one Shri Kashinath Mahajan

as DW-1. The learned Judicial Magistrate First Class, Court No.1,

Amravati, on the basis of the material on record, found the accused

guilty of the offence and sentenced him as above. The appeal filed

by the accused challenging the said order made with same fate.

6. I have heard Shri Mahesh Rai, learned Advocate for the

applicant and Shri R.N. Badhe, learned Advocate for the

respondent. Perused the record and proceedings.

7. Learned Advocate for the accused submitted that there

is ample evidence to show that the cheque was issued as a security

because of the transaction. The learned Advocate submitted that 30 revn.11.21 mahesh rai NI act.odt

by leading evidence of independent witness, the accused has

established that he had sold his old tractor to the complainant and,

therefore, to give finality to the said transaction of sell of his old

tractor and on purchase of new tractor, the cheque in question was

given as security. Learned Advocate submitted that the cheque

issued by way of security was misused. Learned Advocate further

submitted that the amount of cheque was Rs.1,45,000/- whereas,

the learned Magistrate awarded the compensation of

Rs.1,55,000/-. Learned Advocate submitted that after awarding the

compensation, there was no need to award substantive sentence.

Learned Advocate submitted that at the most, in order to take care

of interest of the complainant, some more amount ought to have

been awarded as compensation. Learned Advocate submitted that

the approach of the courts below was contrary to the law.

8. As against this, learned Advocate for the complainant

submitted that the accused has admitted the issuance of cheque for

Rs.1,45,000/- on 30.04.2006. Learned Advocate pointed out that

the old tractor of the accused was purchased by DW No.1

Kashinath for Rs.1,09,000/-. The amount of Rs.1,09,000/- was

directly paid by DW-1 Kashinath to the complainant. The learned 30 revn.11.21 mahesh rai NI act.odt

Advocate, therefore, submitted that the defence of the accused that

the cheque was issued as security on account of this transaction is

not at all acceptable. Learned Advocate submitted that on

acceptance of the amount, the accused issued a cheque and

executed Usanwar Chitti. Learned Advocate further submitted

that the notice issued prior to filing of the complaint was duly

served upon the accused. The learned Advocate pointed out that

the accused neither paid the amount nor replied the said notice.

Learned Advocate submitted that on the basis of the material on

record, a case was made out to invoke statutory presumption

against the accused. Learned Advocate submitted that no evidence

has been adduced to rebut the said presumption. In short, learned

Advocate submitted that both the courts below have not

committed any mistake or illegality.

9. In order to appreciate the rival submissions, I have

gone through the record and proceedings. It is to be noted that the

concurrent finding of fact has been recorded by the courts below

against the accused. The order passed by the Additional Sessions

Judge has been challenged on more than one grounds. It is to be

noted at the outset that the scope of revisional jurisdiction is 30 revn.11.21 mahesh rai NI act.odt

limited. In the revisional jurisdiction, unlike appellate jurisdiction,

the evidence can't be appreciated as a matter of course. In order to

undertake the exercise of re-appreciation of evidence in a revisional

jurisdiction afresh, the party concerned is required to satisfy the

revisional Court that there has been apparent error or mistake on

the part of the Courts below in appreciation of evidence. The

Court must be satisfied that either there is no evidence on record,

to record a finding or the appreciation of evidence is not in

accordance with law and, therefore, the impugned judgment has

become totally perverse. While examining such argument, the

Court must be satisfied that the approach of the Court is arbitrary

and unreasonable in arriving at a final conclusion. In my view,

keeping this settle legal position in mind the question involved in

this application is required to be addressed and resolved.

10. Perusal of the evidence would show that the accused

has not disputed the issuance of cheque. Usanwar Chitti has been

proved. It is at Exh.63. The statutory notice has been proved. On

the basis of the evidence of the witness No.1 examined by the

accused, it has been proved to the satisfaction of the Court that

DW-1 had directly paid the amount of old tractor purchased by 30 revn.11.21 mahesh rai NI act.odt

him from the accused. The accused has admitted the factum of

issuance of cheque and his transaction of purchase of new tractor

from the complainant. Therefore, on the basis of the material, case

was made out to draw the presumption that the cheque was issued

to discharge the legally enforceably debt or liability.

11. The evidence on record adduced by the accused is not

sufficient to rebut this presumption. The learned Additional

Sessions Judge, as can be seen on perusal of the judgment has

made thread bear analysis of the evidence adduced by the parties

and on doing so, concurred with learned Judicial Magistrate, First

Class, Court No.1, Amravati. On going through the judgment and

order passed by the courts below, I am satisfied that there was no

mistake, illegality or perversity in the judgment passed by the

courts below. Interference is not, therefore, warranted in well

reasoned order.

12. This would take me to the important aspect of the

proportionality of the sentence. The learned Advocate for the

accused submitted that the parties had settlement talk during the

pendency of this revisions application and the accused has agreed 30 revn.11.21 mahesh rai NI act.odt

to pay Rs.2,00,000/- in lump sum. Learned Advocate for the

complainant submitted that there was settlement talk. However,

the complainant demanded Rs.2,50,000/- to which the accused

did not agree. It is submitted that, therefore, the settlement could

not be materialised.

13. Learned Advocate for the parties submitted that now

there is a difference of only Rs.50,000/-. It is submitted that Court

by exercising the discretion and keeping in mind the facts and

circumstances of the case may pass an appropriate order.

14. In my view, if the discretion is properly exercised and

the disputed issue of quantum of compensation is properly

addressed, then the order of substantive sentence would not be

necessary considering the very nature of the matter. In the facts

and circumstances of the case, in my view, the interest of justice

would be met, if the amount of compensation payable is fixed at

Rs.2,25,000/-. If the compensation is quantified at Rs.2,25,000/-

then there would be no need of substantive sentence. The

substantive sentence of three months would, therefore, be required

to be quashed and set aside.

30 revn.11.21 mahesh rai NI act.odt

15. Learned Advocate for the accused submitted that in the

year 2016, the accused has deposited Rs.65,000/-. So, out of

Rs.2,25,000/- Rs.65,000/- has been deposited. The accused would

be required to pay the remaining amount i.e. Rs.1,60,000/- to the

complainant. The applicant would be required to pay the same

within a specific period. Hence the following order:-

ORDER:-

(i). The Criminal Revision Application is partly allowed.

(ii) The order dated 22.09.2016 passed by Judicial

Magistrate First Class, Court No.1 Amravati in Sum. Cri. C.

No.6023/2006 awarding sentence of three months simple

imprisonment is set aside.

(iii). The accused is directed to pay the balance amount of

compensation ie. Rs.1,60,000/- within a period of one month to

the complainant. If he fails to pay the balance amount of

compensation then he shall in default undergo simple

imprisonment for one month.

Rule accordingly.

JUDGE

manisha Signed By:MANISHA ALOK SHEWALE

Signing Date:24.02.2023 17:19