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Vijay Shivpad Erandole vs Smt. Ashwini Sharad Kavadi And … on 30 June, 2005

Bombay High Court
Vijay Shivpad Erandole vs Smt. Ashwini Sharad Kavadi And … on 30 June, 2005
Equivalent citations: 2006 CriLJ 2036
Author: V Kanade
Bench: V Kanade


JUDGMENT

V.M. Kanade, J.

1. The petitioner is the original accused and the respondent No. 1 is the original complainant in Criminal Case No. 541/N/97/D. The said complaint was filed by the respondent No. 1 under Section 138 of the Negotiable Instruments Act. It was alleged in the complaint that the complainant and her father-in-law had given power of attorney to the petitioner herein to sell two flats for an amount of Rs. 3,00,000/- each and after the said transaction was completed the respondent No. l issued two cheques of Rs. 3,00,000/- each. These cheques were deposited by the complainant in her Bank. However, both the cheques were dishonored and, therefore, a criminal complaint was filed under Section 148 of the Negotiable Instruments Act. The learned Magistrate convicted the accused and sentenced him to punishment until the rising of the Court and further directed him to pay compensation of Rs. 3,00,000/- to the complainant and in default to undergo simple imprisonment for three months. Against the said judgment and order, and appeal was preferred by the petitioner before the District and Sessions Court, Margao bearing Criminal Appeal No. 02/04. The District and Sessions Judge dismissed the appeal by Judgment and Order dated 19-8-04. Being aggrieved by the said judgment and order, the petitioner has preferred this Criminal Revision Application.

2. It was submitted by the learned Counsel appearing on behalf of the petitioner that both the lower Courts had erred in overlooking the fact that the debt or liability against the petitioner was illegal and/or further not legally enforceable as contemplated under Section 138 of the Negotiable Instruments Act, 1881. It was submitted that though this plea was raised, both the lower Courts had not given any finding how the debt alleged against the petitioner was legally enforceable debt or other liability. It was further submitted by the learned Counsel appearing on behalf of the petitioner that the consideration for the sale of two flats as per the Sale Deed dated 29-11-1995 was Rs. 2,15,000/- which had been brought on record by the petitioner and, therefore, the amount of Rs. 3,00,000/- could not be presumed to be the sale price of any of the flats in question. The learned Counsel appearing on behalf of the petitioner further submitted that both the lower Courts had not taken into consideration Exh.70 which was a letter signed by the husband of the complainant in which it was specifically mentioned that the said cheques were given subject to the condition of deposit of the gold ornaments to the petitioner as security. He, therefore, submitted that the respondent not having deposited the gold ornaments with the petitioner as security, Section 138 of the Negotiable Instruments Act will not be attracted in the facts and circumstances of the case and that the Court had no jurisdiction to entertain the complaint. It was further submitted that both the lower Courts had wrongly discarded document dated 3-10-97 at Exh.70 and the undated document signed by the husband of the complainant. He submitted that both these documents clearly showed that the husband of the complaint had admitted that an amount was due and payable to the complainant for the sale of the flats at Sangli and that the said transaction was complete. He submitted that both the lower Courts have discarded this document on conjectures and surmises. He submitted that both the Courts ought to have shown that the burden that was cast on the accused by virtue of Section 139 of the Negotiable Instruments Act had been duly discharged by the accused on the basis of the said two documents and on production of the Sale Deed. He submitted that, therefore, the initial burden having been rebutted by the accused, it was the duty of the complainant to prove her case beyond reasonable doubt. He submitted that the complainant had miserably failed in establishing beyond reasonable doubt that the said amount of Rs. 3,00,000/- was due and payable for an existing debt of liability. He further submitted that the demand made by the respondent No. 1 was omnibus demand which was without any legal basis and there was no evidence to prove that it was a legal liability.

3. The learned Counsel for the petitioner further submitted that the lower appellate Court had not given any reason for coming to the conclusion that the respondent was entitled to get compensation of Rs. 3,00,000/-. He submitted that no finding was recorded by the lower Court and further no evidence was produced by respondent No. 1 on the question of the said compensation.

4. The learned Counsel appearing on behalf of respondent No, 1 submitted that both the lower Courts have given concurrent finding of fact on both factual and legal aspects raised in the case and, therefore, he submitted that this Court should not interfere with the finding of fact recorded by both the lower Courts. It is further submitted that the lower Courts had rightly disbelieved the two documents on which reliance was placed by the accused. He submitted that the said finding which was given by both the lower Courts for disbelieving the two documents dated 3-10-97 – Exh.70 and the other undated document was a finding of fact and, therefore, there was no reason to interfere with the said finding recorded by both the Courts below. It was further submitted by the learned Counsel appearing on behalf of the respondent No. 1 that both the Courts had held that there was an existing debt and legal liability and that the cheques were issued towards the said liability. The learned Counsel submitted that the finding raised by the learned Counsel for the petitioner that both the lower Courts had not given a finding on this aspect or that the oral and documentary evidence were not considered by the lower Courts was incorrect. It is submitted that that scope of revisional jurisdiction as decided by this Court is very limited. This Court can interfere in the finding recorded by the lower Courts only if it is shown that the finding is perverse or the material which is brought on record by the parties has not been taken into consideration while recording the finding or that material irregularity has been committed by the lower Courts.

5. In the present case the complaint was filed by the respondent and it was alleged in the complaint that the accused was given power of attorney to sell two flats which belonged to the complainant and her father-in-law. In the complaint it was stated that her husband was an Architect by profession. It was alleged that these two flats were sold for an amount of Rs. 3 lakhs and after having completed the transaction, the accused issued two cheques for an amount of Rs. 3 lakhs each. Both these cheques however, were dishonored. Demand Noticed was issued by the complainant to the accused, calling upon him to pay an amount of Rs. 3 lakhs in respect of one cheque which was dishonored. And thereafter the complaint was filed under Section 138 of the N.I. Act.

6. The accused set up a defence that the said cheque of Rs. 3 lakhs was issued by him as a loan and a condition was imposed by the accused that the cheque would be honored only if gold ornaments were given by the complainant as a security for the said loan. It was the contention of the accused that since the gold ornaments were not given to him as security for the loan, the cheque was dishonored and, therefore, there was no existing debt of liability. It was therefore contended that the provisions of Section 138 of N.I. Act were not attracted in the present case. The accused also relied on two documents which were allegedly signed by the husband of the complainant. One was a letter dated 3-10-97 and the other was an undated letter which was issued on the letterhead of the complainant’s husband and it was signed in the presence of one Vikas Bliende. The said letter was written under the caption of ‘Promissory Note’. The accused relied on these two documents in support of his case. The first letter dated 3-10-97 was also issued under the letterhead of the complainant’s husband and was signed by him and it stated that the cheque of Rs. 3 lakhs was being given as a loan with the condition that the complainant would deposit gold ornaments with the accused. It was further stated in the letter that if the gold ornaments were not deposited as security, then the cheque would not be honored. Both the lower Courts have not relied on this document and have given a finding that this document appears to be a fabricated document and that the particulars in the said letter had been filled up subsequently. Both the lower Courts came to the conclusion that one sentence was typed again and this was done to ensure that there is no blank space between the signature which was made on the back side of the letterhead. The trial Court also observed that the said letter was typed in double space and this was again done to ensure that the typed portion tallied with the signature which was on the back side of the letterhead. So far as the other document is concerned which is captioned as ‘Promissory Note’, this document was produced by the accused at a subsequent stage. The trial Court has also observed that the complainant in her examination has stated that four blank letterheads which were signed on the back side by her husband were given to the accused in order to enable him to make changes in the valuation report of the two first floor flats. PW-1 stated that these letterheads were used and subsequently filled up by the accused. The trial Court held that the said document could not be relied upon as it was produced at a later stage and the said document was not above suspicion particularly when no reference to these two letters were made by the accused when he gave his reply to the said notice. Both the trial and appellate Courts thus have given cogent reasons for not relying on these two documents. I do not see any reason to take a different view by interfering with the concurrent finding given by both the lower Courts.

7. So far as the second contention raised by the learned Counsel for the applicant that there was no existing debt or liability and the said cheque was issued towards the loan with the condition that the cheque would be honored only if the gold ornaments were given as security by the complainant, this submission also cannot be accepted. It was submitted by the learned Counsel appearing for the applicant that he had produced the registered Sale Deed on record which showed the consideration for the sale of the flat was Rs. 2,15,000/-. He submitted that if the consideration was Rs. 2,15.000/- there was no occasion to issue a cheque of Rs. 3 lakhs. He submitted that therefore the cheque was not issued in respect of a legally enforceable debt or liability. He submitted that the accused had discharged the presumption which was raised by virtue of Section 139 of the Negotiable Instruments Act. He submitted that both the lower Courts had not taken this question into consideration,

8. This submission cannot be accepted. The trial Court has considered this aspect and has passed a detailed order dated (sic) has given cogent reasons for coming to the conclusion that the said cheque was issued towards the existing debt and liability. The trial Court has observed that the fact that the flats were sold by the accused has not been denied. The trial Court has further observed that if at all the said cheque had been given towards the loan, the accused would have obtained an acknowledgment in writing from the complainant and there was no reason or occasion to obtain this acknowledgment from her husband. The trial Court, therefore, disbelieved the theory of loan being given to the complainant. The trial Court further relied on the written statement which is filed by the accused in the Civil Suit which was filed by her for the recovery of the other cheque of Rs. 3 lakhs. The trial Court has observed that though the Sale Deed for the sale price of the flat is shown as Rs. 2,15.000/- by itself was not sufficient to come to the conclusion that the cheque of Rs. 3 lakhs was not towards the said amount which was due and payable by the accused to the complainant. At this stage, it must be noted that the flats were sold in December, 1995 and the cheque was issued almost after a lapse of two years. The trial Court thereafter came to the conclusion that the accused had not rebutted the presumption which was raised under Section 139 of the Negotiable Instruments Act. The trial Court has further observed that in the reply to the legal notice which was given by the accused a reference was made by the accused regarding the request of loan by the husband of the complainant. However, in the said reply there is no reference of the condition of giving the gold ornaments as security deposit. The trial Court has, therefore, observed that there is a major discrepancy creating a doubt about the case of the accused. The lower appellate Court also has considered this aspect and has given cogent reasons for not relying on the defence raised by the accused and has, after giving cogent reason, confirmed the finding recorded by the trial Court. Since concurrent finding has been given by both the lower Courts, 1 do not see any reason why the said finding should be substituted even if a different view can be taken on the basis of the evidence which is brought on record. Even otherwise I find that the trial Court has given a very reasoned order and the appellate Court also has independently appreciated the evidence on record.

9. In the circumstance, I do not see any reason to interfere with the finding of fact recorded by both the Courts below. There is no merit in the submissions made by the learned Counsel appearing on behalf of the applicant. The Criminal Revision Application is dismissed.

10. Criminal Misc. Application No. 199/ 2004 does not survive and is accordingly disposed of.

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