Bombay High Court

Sachin S/O Vithalrao Gajbhiye (In Jail) vs Sanjay Tulshiram Sawarkar (Dead)Thr. ... on 3 August, 2024

Author: G. A. Sanap

Bench: G. A. Sanap

2024:BHC-NAG:8654

                                                                        3 cr.revn. appln. no.78.20.jud..odt
                                                                                       1/11


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

                     CRIMINAL REVISION APPLICATION NO.78 OF 2020


                            Sachin s/o Vithalrao Gajbhiye
                            Aged about 45 Years, Occupation- Private
                            R/o, Ayodhya Nagar Road, In Front of Dr.                           .... APPLICANT
                            Nisal, Nagpur, District Nagpur                                       (In Central Jail,
                                                                                                        Nagpur)

                                                         // V E R S U S //

                            Sanjay Tulshiram Sawarkar (Dead)
                            through Legal Representative
                            Madhuri Wd/o Sanjay Sawarkar,
                            Age- 51 Yrs. Occ.- Business,
                            R/o, 10/24, Rambagh Colony, Nagpur                              ... RESPONDENT
                    ----------------------------------------------------------------------------------------------
                                    Mr S.N. Nandeshwar, Advocate for applicant.
                    ---------------------------------------------------------------------------

                                   CORAM : G. A. SANAP, J.
                                   DATE:- 03/08/2024


                    ORAL JUDGMENT

1. Heard.

2. ADMIT.

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

judgment and order dated 04.03.2020, passed by the learned

Additional Sessions Judge, Nagpur, whereby the learned 3 cr.revn. appln. no.78.20.jud..odt

Additional Sessions Judge dismissed the appeal filed by the

appellant/accused against his conviction and sentence for the

offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 (for short, "the N.I.Act") awarded by

the learned Judicial Magistrate First Class, Nagpur. Learned

Judicial Magistrate First Class, Nagpur, by his judgment and

order dated 08.10.2007 on conviction, had sentenced him to

suffer simple imprisonment for six months and to pay a

compensation of Rs.50,000/-.

4. Background facts:-

The respondent is the wife of the original

complainant. The original complainant died during the

pendency of the appeal. It is the case of the complainant that,

at the request of the accused, he advanced a hand loan of

Rs.50,000/- to him in the month of June, 2005. The accused

promised to refund the amount within three months. The

accused issued a cheque bearing No.030311 dated 01.12.2005

of Rs.50,000/- drawn on the account of the accused

maintained with Chitanvispura Sahakari Bank, Sakkardara, 3 cr.revn. appln. no.78.20.jud..odt

Branch, Nagpur. The accused did not pay the amount, as

agreed. The complainant therefore, deposited the cheque in

his account maintained with Dr. Babasaheb Ambedkar Urban

Co-operative Bank, Trimurti Nagar Branch, Nagpur, for

encashment. The cheque was dishonoured on the ground of

'insufficient funds' in the account of the accused. On receipt

of necessary communication from the bank, the complainant

issued a legal notice dated 10.12.2005 to the accused. The

notice was sent by registered post. The notice was duly

received by the accused. The accused did not pay the amount

within the stipulated period. The complainant therefore filed

the complaint.

5. Before the Magistrate the complainant examined

himself as a sole witness. The accused has also examined

himself in support of his defence. It is the defence of the

accused that he had borrowed a hand loan of Rs.35,000/-

from one Raju Gaikwad through the wife of the complainant.

He had paid the entire loan amount. However, when the 3 cr.revn. appln. no.78.20.jud..odt

complainant came in picture, he demanded Rs.35,000/-. The

complainant at the point of the knife obtained his signature

on a blank cheque. Learned Magistrate, on consideration of

the evidence, held the accused guilty and sentenced him as

above.

6. The appeal filed by the accused was dismissed by

the learned Additional Sessions Judge, Nagpur. The accused

has therefore, come before this Court in revision.

7. I have heard learned Advocate for the accused. The

respondent despite service has failed to appear before this

Court.

8. Learned Advocate for the accused submitted that

the courts below have failed to properly appreciate the

evidence adduced by the accused in support of his defence.

Learned Advocate took me through the record and pointed

out that the report at Exh.41 was lodged by the accused at the 3 cr.revn. appln. no.78.20.jud..odt

Police Station against the complainant when his signature was

obtained at the point of a knife on a blank cheque. Learned

Advocate further submitted that there was no proper service

of the notice to the accused. A postal acknowledgment was

produced on record and the signature on the said

acknowledgment has been denied by the accused. Learned

Advocate submitted that the evidence adduced by the

complainant is not sufficient to trigger the presumption

provided under Section 139 of the N.I. Act. Learned

Advocate would submit that the courts below have failed to

properly appreciate the evidence on record and as such, the

findings of fact are perverse.

9. It is to be noted that the scope of revisional

jurisdiction is very limited. While exercising the revisional

jurisdiction, the exercise of re-appreciation of the evidence

cannot be undertaken as a matter of course and in a routine

manner like the appellate jurisdiction. The re-appreciation of

the evidence can be done only in case the party concerned is 3 cr.revn. appln. no.78.20.jud..odt

able to satisfy that the finding has been recorded without

evidence or the available evidence has not been properly

appreciated. The party concerned is required to point out an

error and perversity in the findings of the courts below.

Bearing this position in mind, it is necessary to consider the

submissions advanced by the learned Advocate for the

accused.

10. The courts below have recorded the concurrent

findings of fact. The courts below have held that the evidence

adduced by the complainant is sufficient to prove the basic

ingredients of Section 138 of the N.I. Act. The courts below

have held that on proof of the necessary ingredients of Section

138 of the N.I. Act the presumption provided under Section

139 of the N.I. Act was triggered. It is true that the accused

has come before the Court with the defence that his signature

on a blank cheque was obtained at the point of a knife. The

complaint lodged by the accused is at Exh.41. The accused

has not examined any other witness to show that the 3 cr.revn. appln. no.78.20.jud..odt

complaint was lodged to the Police Station. The accused has

relied upon the stamp of the concerned Police Station. The

accused was required to adduce the evidence to make good his

defence. The accused has denied his signature on the

acknowledgment. The accused has not denied his signature on

the cheque. The cheque was submitted by the complainant

for encashment, but it was dishonoured on the ground of

'insufficient funds' in his account. On receipt of necessary

information from the bank the complainant had issued a

notice dated 10.12.2005. A notice by registered post

acknowledgement due was sent to the accused at the address

of his pan shop. He has admitted in this case that he is

running a pan shop at the given address. As such, it is crystal

clear that he has not denied his address. The summons in the

criminal case as well as the notice in the appeal were served to

the accused to the address of his pan shop. The accused has

admitted that he is having a pan shop at the given address. In

this factual position the presumption of due service on notice

was invoked as provided under Section 27 of the General 3 cr.revn. appln. no.78.20.jud..odt

Clauses Act, 1897. As per Section 139 of the N.I.Act there is a

presumption in favour of the holder of the cheque. As per

this presumption, the Court shall presume, unless the

contrary is proved that the holder of the cheque received the

cheque for the discharge, in whole or in part of, any debt or

other liability. In my view, the evidence adduced by the

complainant is sufficient to invoke this presumption. The

presumption is rebuttable. The accused was supposed to

adduce satisfactory evidence. It is further pertinent to note

that he has failed to examine Raju Gaikwad, from whom, he

had initially borrowed a hand loan of Rs.35,000/-. The

evidence adduced by the complainant has been properly

considered by the courts below. On going through the

judgment and order of the appellate Court as well as the court

of learned Magistrate, I do not see any substance in this

revision application. The courts below have recorded cogent

and concrete reasons in support of the findings. The

concurrent findings of fact have been recorded on the basis of

the evidence. The courts below have not committed any 3 cr.revn. appln. no.78.20.jud..odt

mistake or error while appreciating the evidence. In this view

of the matter, the submissions advanced by learned Advocate

for the applicant cannot be accepted.

11. The next important issue is with regard to the

quantum of the sentence. In this case, the compensation

awarded to the complainant is Rs.50,000/-. Out of

Rs.50,000/-, Rs.20,000/- is deposited before the trial Court.

Learned Advocate submitted that considering the nature of

the transaction, the substantive sentence of six months was

not justified. Learned Advocate submitted that in place of

substantive sentence, the courts below would have awarded

some more amount by way of compensation. Learned

Advocate has pointed out that the accused, after dismissal of

appeal was in jail for 8 days i.e. from 04.03.2020 to

11.03.2020. Learned Advocate submitted that the sentence

already undergone would serve the ends of justice.

12. I have given thoughtful consideration to this 3 cr.revn. appln. no.78.20.jud..odt

submission. It needs to be stated that the complainant has

proved the transaction. The cheque was for Rs.50,000/-. The

compensation payable would be double the amount of cheque

as per the provisions. The Court in addition to the

compensation, can award a substantive sentence. In my view,

considering the nature of transaction between the parties the

substantive sentence of six months would be unreasonable. In

the facts and circumstances, the substantive sentence deserves

to be modified.

13. The Criminal Revision is partly allowed.

(i) The order passed by learned Judicial Magistrate

First Class, Nagpur dated 08.10.2007 awarding the

substantive sentence of six months and confirmed by the

learned Additional Sessions Judge, Nagpur vide order dated

04.03.2020 stands modified.

(ii) The appellant/accused in place of sentence of six

months imprisonment, he is directed to undergo sentence

which he has already undergone.

3 cr.revn. appln. no.78.20.jud..odt

(iii) As far as the compensation is concerned,

considering the modification of substantive sentence, the

accused shall pay Rs.30,000/- (Rupees Thirty Thousand

Only) more by way of compensation. In view of this, total

compensation payable shall be Rs.80,000/- (Rupees Eighty

Thousand Only).

(iv) Accordingly, the accused is sentenced to suffer

imprisonment already undergone by him. He shall pay