That is how the cheque was issued and accepted. It is an afterthought to urge that the accused signed blank cheques and they were handed over to the agent as a security.
This is sought to be suggested only relying upon the endorsement "not above Rs.20 crores" on the cheque. If that was so, then there is no explanation forthcoming as to why there has been no grievance or complaint made disputing the liability or the correctness of the entries in the statement of account or questioning the act of selling the pledged securities. All this would not have taken place had the cheque handed over at the time of the issuance of the sanction letter or disbursal of the loan amount. In such circumstances, there is no question of blank cheque being handed over as that fact is belied by the line of cross-examination adopted by the accused himself. The suggestions given by him to the complainant's witnesses and their answers thereto would show that the cheque was handed over in December, 2010 and all the details therein were filled in by the applicant accused. In these circumstances, the trial Court did not commit any error in holding that the offence u/s 138 of the N.I. Act has been committed by the applicant accused.
Bombay High Court
Mr.Vyomesh Jitendra Trivedi v State of Maharashtra on 23 September, 2013
Bench: S.C. Dharmadhikari
Citation : 2013 ALL M R(cri)3783
1. Rule. Respondents waive service. By consent of the parties, Rule made returnable forthwith and heard finally.
2. At the outset, it must be clarified that I was presiding over a Single Bench assigned criminal revision applications and at that time, this criminal revision application was placed before me. Prior thereto, it was heard by another learned single judge Hon'ble Mr.Justice A.M.
Thipsay but he could not pronounce final orders. I had heard this matter in May 2013 but because of the ensuing May Vacation, I immediately could not deliver a judgement and placed it for passing of orders / Judgment in Court on 10.6.2013. Prior thereto, the 1 / 28 revn.180.2012.doc assignment of work changed and in my case, I was no longer assigned criminal revision applications. That is how the matter stood released automatically and in terms of the directions issued by the Hon'ble the Chief Justice, while assigning judicial work.
3. However, the parties mentioned before me that this case was extensively heard by me and, therefore, the final orders be passed by me. They obtained the requisite directions from the Hon'ble the chief Justice. That is how the matter came to be re-assigned to me. It was in my Chambers on 10.7.2013 on account of my current assignment, I indicated to the parties that it would take some time to deliver a judgment. The parties stated that they did not have anything to add other than what was already argued and noted by me. In such circumstances, the order was reserved. The delay that has occurred in delivering this judgment is because of the Division Bench Criminal work assignment of which I am part of and which has continued from 27.6.2013 till date. This explains the delay in pronouncing this Judgment.
4. By this Criminal Revision Application, the application challenges the judgment and order dated 12.7.2011 of the learned Metropolitan Magistrate, 62nd Court, Dadar, Mumbai in C.C. No.2960/SS/2011. He 2 / 28 revn.180.2012.doc also challenges the order dated 18.5.2012 of the Additional Sessions Judge for Greater Bombay at Sewree dismissing Criminal Appeal No.130 of 2011.
5. The proceedings are under the Negotiable Instruments Act, 1881. The case of Respondent No.2 - complainant M/s.Reliance Capital Limited is that it is a limited company registered under the provisions of Indian Companies Act, 1956 having its registered office at Navi Mumbai, District Thane.
6. It is also a non banking finance company, inter alia, dealing with providing various financial facilities to the customers at large through its Head Consumer Finance Division and Corporate office situated at Wadala, Mumbai. The applicant accused is the customer of Respondent No.2 complainant. He availed of finance / loan facility being loan against securities from the Complainant company which was sanctioned pursuant to loan application No.LAS 3463 and after the parties executed various documents and papers in respect thereof. A sanction letter was issued on 29.9.2010 sanctioning a loan facility of Rs.20 crores to be disbursed into tranches against pledge of shares of some companies and which were to be deposited by the applicant accused in favour of the respondent No.2 - Complainant.
3 / 28 revn.180.2012.doc
7. The applicant accused executed with the Complainant a loan cum agreement to create pledge of securities dated 29.9.2010 for the loan facilities of Rs.20 crores to be disbursed as above. He also executed a power of attorney, demand promissory note and letter of continuity for demand promissory note, both dated 29.9.2010. The Complainant narrates as to how the shares were then deposited.
However, it is alleged that due to sharp drop / decline in the value of securities/shares pledged by the accused, which were listed on the stock exchange, the loan account was overdrawn and thus, the complainant by its letters dated 2.12.2010 and 6.12.2010 alongwith a personal telephonic contact and other methods called upon the applicant accused to regularise the loan account but he failed to do so. There were repeated intimations and demands and ultimately, the pledged shares were sold by the Complainant company and details thereof have been set out in the complaint.
8. Paragraphs 9, 10, 11 and 12 of the complaint reads thus:
"9. The Complainant states that since the overdue amount were increasing day by day due to reduction in the value of shares of Shree Ashtavinayak Cine Vision Limited which were only remained pledged with the Complainant Company and none was present to purchase the said shares on the stock exchange and also, the Accused failed to serve the interest on the the overdue amount, the Complainant Company has no 4 / 28 revn.180.2012.doc option but to approach the Accused with a request to regularize the overdrawn loan amount by making payment thereof. The Complainant states that accordingly, the officer of the Complainant Company, viz., Mr.Nilkanth Mahamuni, approached the Accused for closure of the loan account by paying the entire dues. The Complainant states that upon approached by its officer, Mr.Nilkanth Mahamuni to the Accused, the Accused had issued the cheque towards foreclosure of entire loan amount alongwith interest, totaling to Rs.7,05,18,265/- and the description thereof is as under:
Sr. Cheque Amount (Rs.) Date Bank and Branch No. No. 1 728048 7,05,18,265/- 15/12/2010 HDFC Bank Limited, Worli Branch, Mumbai-
ig 400018 The coy of the said cheque is hereby annexed and marked Exhibit "F" is attached herewith.
10. The Complainant company states that the Complainant have lastly deposited the aforesaid Cheque on 15/12/2010 with its banker - HDFC Bank, Fort Branch, Mumbai for realization of the same. That to the utter surprise of the Complainant, the said aforesaid Cheque returned with remark "Payment Stopped by Drawer" having dishonored memos dated 15/12/2010 was received by Complainant's office at Mumbai. Hereto annexed and marked Exhibit 'G' Colly are the copies of the said 2 (Two) Bank memos all dated 15/12/2010 received by the Complainant Company's office at Wadala, Mumbai.
11. The Complainant states that the Complainant Company sent Statutory Demand Notice dated 24/12/2010 posted on 27/12/2010 through its Advocates, M/s.Vikas Salvi & Associates, underSection 138 of Negotiable Instruments Act calling upon Accused to make payment of dishonored cheque within 15 days of receipt of the said Statutory Demand Notice. Hereto annexed and marked Exhibit 'H' is the copy of the said Statutory Demand Notice dated 24/12/2010, issued by the Complainant through its Advocate.
12. The Complainant Company states that the said Statutory Demand Notice dated 24/12/2010 was dispatched by SPEED 5 / 28 revn.180.2012.doc POST A.D. And U.C.P. On 27/12/2010 at the addresses mentioned in the aforesaid notice. The packet containing the demand notice sent to Accused address at Dahisar, Mumbai returned with remark "Intimation Posted" on or about 29/12/2010 and the packet containing the demand notice sent to Accused address at Borivali - East, Mumbai is duly acknowledged by the Accused on or about 29/12/2010. Hereto annexed and marked as Exhibit "I" Colly are the SPEED POST postal acknowledgement card & the Returned SPEED POST packet containing demand notice. The Complainant states that notice sent under UPC have not been returned by the postal authorities and hence, the same is deemed to have been duly served upon the Accused. Hereto annexed and marked as Exhibit 'J' Colly are the copies of the proof of posting of statutory notices through SPEED POST and U.C.P."
9. Thus, on these allegations, it was alleged that the applicant accused has committed an offence punishable u/s 138 of the Negotiable Instruments Act, 1881 as amended and that he should be dealt with in accordance with law. This complaint was filed on 9.2.2011 and Respondent No.2 relied on several documents.
10. On necessary verification, the learned Magistrate was pleased to issue process calling upon the applicant accused before me to appear. The applicant was given ample opportunity to defend himself, according to the complainant. In other words, Respondent No.2 complainant led evidence by filing an affidavit of the officers and the witnesses were cross-examined. The learned Magistrate upon appreciation and appraisal of the oral and documentary evidence and 6 / 28revn.180.2012.doc due consideration of the oral arguments, delivered his judgment convicting and sentencing the present applicant as under:
"ORDER
1. The accused Vyomesh Jitendra Trivedi R/o:Borivalli, Mumbai is hereby convicted u/s 255(2) of Criminal Procedure Code for an offence punishable under Section 138 of the Negotiable Instruments Act.
2. He is sentenced to undergo simple Imprisonment for 15 days and to deposit compensation of Rs.7,60,00,000/- (Rs.Seven Crore sixty lakhs only) in default to undergo Rigorous Imprisonment for 6 (Six) months.
3. The amount of compensation, if recovered, be paid to the complainant, after the expiry of appeal period.
4. The accused is allowed to deposit the amount of compensation in 4 (Four) equal monthly installments.
5. The accused shall surrender his bail bond
6. Certified copy of Judgment be supplied to the accused free of cost.
Date: 12/07/2011."
11. Aggrieved and dissatisfied with this judgment and order of conviction and sentence, Criminal Appeal No.130 of 2011 was preferred and the Additional Sessions Judge to whom it was assigned, dismissed it by his judgment and order dated 18.5.2012.
Hence, this Criminal Revision Application.
12. Mr.Subhash Jha, learned advocate appearing on behalf of the applicant, submitted that the impugned judgments are contrary to law.
7 / 28 revn.180.2012.doc They are vitiated by serious errors and can be termed as perverse. It is urged that the cheque was given towards security at the time of making loan application by the accused and it was handed over to the financial consultant M/s.Trendswith Consultancy Services. The cheque was, therefore, given to secure the loan amount and there is no question of it being handed over in discharge of a legally enforceable liability. There were various contentions which have been raised before the Courts below and based on the documents.
There are several contradictions, omissions and inconsistencies in the complainant's evidence and which have been pointed out but they have been ignored by both the Courts and in such circumstances, the impugned judgments and orders are vitiated as above and therefore, they should be set aside.
13. Mr.Jha has submitted that the Courts below have failed to consider that the endorsement on the cheques "not over Rs.20 crores" is unusual and not ordinary and normal. The impact of such endorsement should have been considered. Far from being considered, it has not been noted as well. That will clearly show that the loan was obtained for Rs.20 crores and that this cheque was handed over as security. Else, this endorsement was unnecessary. It clearly explains the factual position. In such circumstances, no 8 / 28 revn.180.2012.doc offence can be said to have been committed muchless punishable u/s 138 of the Negotiable Instruments Act. Mr.Jha has submitted that the cross-examination of the witnesses examined by the Complainant, namely, Joe Anthony D'souza and Neelkanth Vishnu Mahamuni has been overlooked. In the cross-examination of these witnesses, a specific question was asked and in answer thereto, the witness D'souza, who is a Legal Manager, replied that he does not have personal knowledge regarding the transaction. However, he has stated that it was not correct to state that the loan transaction was completed through M/s.Trendswith Consultancy run by Mr.Atul from Vile Parle. The witness was specifically asked with regard to the correspondence and even the endorsement on the cheque and he stated that he cannot stated as to why it has been mentioned on the cheque (exhibit 17) that (not over Rs.20 crores). He denies the suggestion that the cheque was handed over to Atul of M/s.Trendswith Consultancy at the time of submitting the documents dated 29.9.2010. The witness was unaware of the complete details about the sale of shares either.
14. Mr.Jha submits that in the case of witness Mahamuni, it has come in his cross-examination that the accused had already filled up the contents of the cheque. He states that he made enquiry with the 9 / 28 revn.180.2012.doc accused as to why he had mentioned on the cheque that it was not above Rs.20 crores but the accused disclosed that since the agreement was for Rs.20 crores, he had mentioned the same. He denies the suggestion that the cheque was handed over at the time of disbursing the loan. However, according to Shri Jha, this is in clear contradiction to the statement of Joe Anthony D'souza, who has stated that the loan transaction was completed through M/s.Trendswith Consultancy and he denied the suggestion that the cheque was handed over to Atul of M/s.Trendswith Consultancy at the time of submitting the documents dated 29.9.2010.
15. Thus, this is a clear case of the Courts below omitting from consideration the stand of the present applicant.
16. Mr.Jha has invited my attention to the fact that when the applicant accused had stated that the cheque was given at the time of the transaction, there is no cross-examination on this point. The cheque was thus, not issued in favour of the complainant in discharge of a legally enforceable liability.
17. Further, the endorsement "not over Rs.20 crores only" and Rs.7.5 crores, which is the figure and the amount mentioned on the 10 / 28 revn.180.2012.doc cheque are in two different handwritings. For all these reasons, this is a fit case where the judgments of the Courts below could be termed as perverse.
18. Mr.Jha has taken me through some of the documents to submit that the credit facility was known and equally, that the cheque was handed over. Finally, he submits that the Courts below have erred in law in not making the requisite enquiries before awarding compensation. Mr.Jha ig has submitted that the amount of Rs.7,60,00,000/- is determined as compensation arbitrarily and without in any manner recording the requisite satisfaction making the necessary enquiry contemplated by section 357 of the Code of Criminal Procedure. For all these reasons, he submits that this criminal revision application be allowed.
19. Mr.Jha has relied upon the following decisions in support of his contentions:
i) Dilip S. Dahanukar vs. Kotak Mahendra Co. Ltd. & anr.1
ii) Sudhir Kumar Bhalla vs. Jagdish Chand & Ors.2
iii) M.S. Narayan Menon vs. State of Kerala & anr.3
iv) P.Suresh Kumar vs. R. Shankar4
v) Kumar Exports Vs. Sharma Carpets5 1 (2007) 6 SCC 528 2 (2008) 7 SCC 137 3 (2006) 6 SCC 39 4 (2007) 4 SCC 752 5 (2009) 2 SCC 513 11 / 28 revn.180.2012.doc
20. On the other hand, Mr.Ponda, learned Counsel appearing on behalf of Respondent No.2, submitted that the admitted facts need to be noted first. They are as follows:
i. That the loan facility was availed of by the accused against Securities ii. That the loan agreement is executed by the accused on 29.9.2010 iii. That in addition to loan agreement the accused also executed Power of Attorney, demand promissory note, letter of continuity for demand promissory note and other documents on 29.9.2010 iv. The loan amount is against the shares which facility is linked with the market price of the shares and enough margin money.
v. The value of pledged shares of Shree Ashtavinayak Cine Vision Ltd. Fell from Rs.41-48 to Rs.7-8 per share vi.Due to drop in shares the loan amount was overdrawn and hence the complainant by his letter dated 2.12.2010 and 6.12.2010 alongwith telephonic contacts, emails and personal visits called upon the accused to regularize the accounts within 24 hours from the date of the letters. vii. The signatures on the cheque is of the accused.
viii.On 7.12.2010 an email was sent from the complainant to the accused intimating that the pledge shares will be sold to recover the deficit margin money.
ix.There is no reply to the emails sent by Mr.Mtritunjay Sen, the Officer of the Respondent Company to the accused x. Shares of Core Project were sold to cover the marking (cross examination of the accused at para 4 of page 22 of the paperbook of the Respondent No.2 / Complainant) xi.Even after sale of shares of Core Project the deficit portion of margin money could not be covered. xii. The reason for not selling the shares of Shree Ashtavinayak was that it was in the lower circuit from 26.11.2010 to 14.1.2012 and the possessor cannot sell the shares in the Lower Circuit.
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21. Mr.Ponda, therefore, submits that there was a liability against the loan transaction. Further, documents were executed voluntarily and never questioned. They bore the signature of the accused pursuant to which he received the sum of Rs.14,32,22,250/-. The cheque was issued and signed by him. The cheque was deposited within the statutory period and it was dishonoured. The ingredients of the offence are thus made out because upon dishonour, for the reasons specified insection 138, further compliance was made of sending a demand notice which was duly received. There has been no compliance with that demand notice. There was no reply to the demand notice. In such circumstances, in revisional jurisdiction, this Court should not interfere with the findings of fact. The impugned orders are, therefore, not required to be set aside as findings of fact recorded are binding on this Court. The impugned orders are not vitiated by any error of law operating on the face of the record or perversity. Therefore, the revision application be dismissed.
22. With the assistance of Mr.Jha and Mr.Ponda, I have gone through the entire application, annexures thereto and the impugned orders. The law on the point is so well settled that it does not require any reiteration. As far as revisional jurisdiction of this Court is 13 / 28revn.180.2012.doc concerned, that cannot be exercised to interfere with the findings of fact, particularly, when they are not vitiated by any perversity.
23. The attempt of Mr.Jha is to urge that the cheque was given as a security and not towards due repayment of any loan liability. In that regard, he has relied upon depositions of the material witnesses.
24. The affidavit in lieu of examination in chief of the complainant has been perused by me. The witness Joe D'souza has stated in his deposition that he knows the accused. He is a customer of the company having availed the finance / loan facility against security being loan against security which was sent pursuant to loan application No.LAS3463. This application was duly signed and submitted by the accused. The loan application bears the photographs of the accused and he has signed thereupon. In the loan application, the accused had asked the finance facility of Rs.20 crores against pledge of shares of companies such as Core Projects and Technologies Ltd. & Shree Ashtavinayak Cine Vision Ltd. to be deposited by the accused. Alongwith the original loan application, the accused submitted KYC (Know Your Customer) including proof of residence and business and financial documents. The witness has specifically stated in his examination in chief that while availing and 14 / 28 revn.180.2012.doc applying for loan, the accused also signed an authorisation and declaration of the same date wherein the accused had agreed for standard rate of interest and other charges payable on the said services.
25. He has deposed as to how the original sanction letter dated 29.9.2010 was handed over and a copy thereof has been produced by him. The other documents are also referred to including the loan cum agreement to create pledge of securities, demand promissory note and a letter of continuity of demand promissory note. Nowhere has the witness stated that any cheque was handed over in advance or at the time of the sanctioning of the loan. The witness has stated as to how the amount disbursed came to be credited in the account of the applicant. In fact, the Account statement has been relied upon.
Thereafter, the witness narrates as to how there was correspondence because the value of the securities / shares pledged started falling in the market. The deficit of the principal amount has been mentioned and thereafter what has been stated is the principal amount of Rs.6,99,69,6148.20 plus interest amount. Thus, in all, a sum of Rs.7,05,18,264.83 as per the account statement was due and payable from the applicant accused. The applicant despite demand notices, never came forward to regularise his account and the witness 15 / 28revn.180.2012.doc has narrated that due to reduction in the value of the shares of Shri Ashtavinayak Cine Vision Limited which was the only pledge with the complainant company that the officer of the complainant Mr.Neelkant Mahamuni approached the applicant and apprised him of the situation that none was present to purchase the shares on the stock exchange.
The complainant company, therefore, approached the accused for repayment of its dues and that is how he issued cheque bearing No.728048 dated 15.12.2010 for a sum of Rs.7,05,18,265/-. It was produced. The cheque was dishonoured with the remark "payment stopped by the drawer". Thereafter, the advocate's notice dated 24.12.2010 was addressed and how it was served and received has been narrated.
26. That is how it is stated that the applicant has committed offence punishable u/s 138 of theN.I. Act. Thus, this part of the evidence has not been in any manner falsified. In fact, the applicant accused in his statement u/s 313 of the Code of Criminal Procedure has admitted to the transaction, execution of documents and receipt of demand notice. Even in the cross-examination of the applicant accused, what has come on record is that the complainant company disbursed total amount of Rs.14,32,22,250/- to him. He also admitted the pledge of the securities. He also admitted that he does not have the 16 / 28 revn.180.2012.doc documentary evidence to show that he handed over any cheque at the time of the opening the account. Thus, in his cross-examination, he has admitted the transaction and the liability. To my mind, the Courts below have committed no error in relying upon this unshattered testimony of the witnesses examined by the company and equally the admissions in the cross-examination of the applicant accused.
27. The presumption that the cheque was handed over in due discharge of a legally enforceable liability and not as a security is, thus, raised in this case. The burden was on the applicant accused to show that the cheque was not handed over in discharge of any liability but as a security for the transaction of loan. Because of his admission that he had no evidence to show that the cheque was handed over at the time of the opening of the account and the disbursal of the loan, it is clear that the applicant accused could not prove that the cheque was handed over as a security, as is now alleged.
28. The attempt of Mr.Jha is to rely on the annexures to the present application. However, the annexures include the very documents based on which the loan was sanctioned. That bears the signature of the applicant. There does not appear to be any over-writing or any 17 / 28revn.180.2012.doc contemporaneous documents evidencing handing over of cheque in advance or as a post dated cheque at the time of executing the loan documents. In fact, the transaction has been reiterated because its terms and conditions are set out in the very documents.
29. Now, only relying upon the details inserted on the cheque that the applicant is alleging that the amount of Rs.7,05,18,265/- was filled in later. The endorsement 'not over Rs.20 crores' is relied upon to show that the cheque was handed over in blank and as a security at the time of the execution of the loan documents. However, nowhere this case is set up either in reply to the demand notice or otherwise.
The cross-examination of Joe D'souza is relied upon but in parts.
I have perused his entire evidence and I do not find anything therein which could be termed as admission of a cheque being handed over at the time of the execution of the loan documents or disbursal of the loan amount. Even the sanction letter was handed over. In fact, the suggestions given by the applicant's advocate during cross-
examination have been denied and it has been stated very clearly that it is not correct to state that the loan liability has been wrongly calculated. The witness reiterates that the cheque of Rs.7,05,18,265/-
was handed over by the applicant to Neelkanth Mahamuni on 14.12.2010. The details thereon have been filled up by the accused.
18 / 28 revn.180.2012.doc The suggestions about the three different handwritings in exhibit 17 have been denied. Merely because the witness was unable to explain as to why it was being mentioned on the cheque (not over Rs.20 crores) does not mean that the cheque was handed over prior to the date appearing therein. That the suggestions given pertain to the loan transaction being finalised through some consultancy firm does not mean that the cheque was handed over in advance or at the time of applying for or sanctioning of the loan. All suggestions to that effect have been denied in cross-examination by the witness. The cross-examination has not been pursued on the lines urged before me by Mr.Jha. In these circumstances, what appears to be the clear position emerging from the record is that the cheque amount is correctly mentioned. The cheque was never handed over earlier.
The cheque carried the endorsement 'not over Rs.20 crores' and the reason, therefore, has come out in the cross-examination of Neelkanth Mahamuni by the applicant accused himself. The witness replied to an answer in cross-examination that he made enquiry with the accused as to why he has mentioned on the cheque that it was not above Rs.20 crores and the accused disclosed that since the agreement was for Rs.20 crores, he has mentioned the same. Even the witness Mr.Mahamuni has denied the suggestion that the cheque was handed over at the time of disbursing the loan. His answers in 19 / 28 revn.180.2012.doc the cross-examination would have to be read in their entirety. So read, it is clear that he had addressed letters of demand and visited the house of the accused. He has also deposed about his visits to the home of the accused on 6.12.2010 and 14.12.2010. It is in these circumstances, that I do not find that the Courts below committed any error in relying upon the version of the complainant and disbelieving the applicant accused. The discussion by the trial Court in its judgement from para 12 onwards shows that the trial Court has relied upon the unchallenged testimony of the witnesses and it was for the applicant accused to have rebutted the presumption that the cheque was not handed over in due discharge of a legally enforceable liability.
Thus, the presumption under section 118 of the N.I. Act was not rebutted at all.
30. The arguments of the applicant have been dealt with and the issue raised before me has been discussed in paragraphs 22 and 23 of the trial Court judgment. The trial Court rightly proceeded on the footing that the loan transaction and the liability has not been disputed. The correctness of the statement of account has not been disputed together with the entries therein. The loan of Rs.14,32,22,250/- was disbursed and as on 14.12.2010, an amount of Rs.7,05,18,264.83 was deficit to cover up the margin money. The 20 / 28 revn.180.2012.doc sale of pledged shares has been admitted and that is how the learned Judge held that as on the date of the cheque, the liability to pay Rs.7,05,18,264.83 was admitted. That is how the cheque was issued and accepted. It is an afterthought to urge that the accused signed blank cheques and they were handed over to the agent as a security.
This is sought to be suggested only relying upon the endorsement "not above Rs.20 crores" on the cheque. If that was so, then there is no explanation forthcoming as to why there has been no grievance or complaint made disputing the liability or the correctness of the entries in the statement of account or questioning the act of selling the pledged securities. All this would not have taken place had the cheque handed over at the time of the issuance of the sanction letter or disbursal of the loan amount. In such circumstances, there is no question of blank cheque being handed over as that fact is belied by the line of cross-examination adopted by the accused himself. The suggestions given by him to the complainant's witnesses and their answers thereto would show that the cheque was handed over in December, 2010 and all the details therein were filled in by the applicant accused. In these circumstances, the trial Court did not commit any error in holding that the offence u/s 138 of the N.I. Act has been committed by the applicant accused.
21 / 28 revn.180.2012.doc
31. In the criminal Appeal, once again, this aspect was raised as is clear from point No.3 framed by the lower appellate Court. In answering point No.3, what the learned Adhoc Additional Sessions Judge has observed is that the appellant applicant raised all technical pleas about defective affidavits in examination-in-chief. As is clear from the reasoning only on technicalities, the conviction is assailed.
All that is now argued before me has not been argued before the lower appellate Court. In these circumstances and when there was no challenge to the evidence led by the complainant company, then, to my mind, the learned Judge committed no error in rejecting the argument that the cheque was handed over as a security. The reasoning in paragraph 19, that the issuance of cheque is nowhere disputed, the signature of the applicant accused thereon is not disputed, the failure to discharge the burden which was on the applicant accused, namely, that the details in the cheque including the figures were not filled in by him, is not vitiated by any error of law apparent on the face of the record or perversity. That the applicant accused has failed to discharge the burden is clear from all admissions given by him in his examination in chief and including his statement u/s 313 of the Cr.P.C. In these circumstances, the reasoning in paragraph 19 to 21 of the lower appellate Court's order is not vitiated in any manner.
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32. The faint attempt by Mr.Jha is to urge that the learned Judge has failed to take into consideration the capacity of the applicant to pay the compensation vitiates that part of the order of the Courts below.
33. Reliance is placed by Mr.Jha on the judgment in the case of Dilip S. Dahanukar vs. Kotak Mahendra Co. Ltd. & Anr., (2007) 6 SCC 528. It is very clear from the paragraphs relied upon by Mr.Jha that imposition of fine and/or grant of compensation must be considered having relevant factors in mind. However, in the case of Dilip S. Dahanukar (supra), it was all throughout argued that the appellant before the Supreme Court was sentenced to imprisonment but only fine was imposed on the company. The trial Judge has invoked both subsections (1) and (3) of section 357of the Cr.P.C.
The liability of the appellant was a vicarious one in terms of section 141 of the N.I. Act. It is in these circumstances, that the Hon'ble Supreme Court found that a direction to pay compensation of Rs.15 lakhs by the Chairman of the Company is unreasonable, exorbitant and arbitrary. The fine of Rs.25,000/- only was imposed on the company and, therefore, such an unreasonable direction was set aside and substituted by the Honourable Supreme Court. The very 23 / 28revn.180.2012.doc principles if applied to the present facts, what emerges is that there is no question of conviction of any other entity far from sentencing it.
The lone accused is the applicant before me. He had issued a cheque in the sum of Rs.7,05,18,264.83. For the balance liability, the cheque was issued and when such a cheque was dishonoured, all that the learned trial Judge has done is to direct payment of compensation which, to my mind, does not in any manner prejudice the present applicant because it is commensurate with his liability under the cheque.
The sum of Rs.7,60,00,000/- determined as compensation was in no way excessive, exorbitant or arbitrary far from being unreasonable. Therefore, reliance on this judgment is clearly misplaced.
34. Then, Mr.Jha relied on three judgments of the Supreme Court reported in the case of Sudhir Kumar Bhalla vs. Jagdish Chand & Ors., (2008) 7 SCC 137, M.S. Narayana Menon vs. State of Kerala & Anr., (2006) 6 SCC 39 and P.Sureshkumar vs. R. Shankar, (2007) 4 SCC 7852 - all are on the point of the cheque given as security does not attract section 138 of the N.I. Act. All are distinguishable on facts. About the principle, there is no dispute. The application thereof will depend upon the facts and circumstances in each case. In all cases, the Honourable Supreme Court found as of fact that the 24 / 28 revn.180.2012.doc cheques were given as a security. In the first case, namely, Sudhir Kumar Bhalla (supra), there were two complaints and the learned Single Judge did not address himself on the legal position raised that the criminal liability of the appellant under the provisions of section 138 is attracted only on account of dishonour of the cheques issued in discharge of the liability or the debt but not on account of issuance as security cheques. There was also a complete non-consideration of the factual materials. This decision of no assistance to the Applicant-
Accused before me.
35. In Narayana Menon (supra), the facts were very clear inasmuch as the definite case of Respondent No.2 was that the cheque dated 17.8.1992 was issued by the appellant in discharge of a debt. The liability arose in terms of the transactions. However, he did not produce his books of accounts and he did not maintain the statutory books of accounts and other registers in terms of the stock exchange bye laws. It is in these circumstances, that the Honourable Supreme Court held that the burden was on the applicant accused but it was not so heavy and as that of the prosecution. The applicant accused had shown that there was no legally enforceable debt for which the cheque came to be issued. Respondent No.2 could not produce the books of account and also was unable to explain the 25 / 28 revn.180.2012.doc discrepancy in the books of accounts. It is in these circumstances, that the appeal was allowed and Narayana Menon was acquitted. He had always stated that nothing was due and the cheque was by way of security and this was a probable defence.
36. Even in the case of P.Sureshkumar (supra), the facts before the learned Single Judge of the Andhra Pradesh High Court were typical and, therefore, the judgment came to be delivered in favour of the accused. To my mind, each of these decisions therefore turn on the facts and when the applicant accused before me did not dispute the transaction, the correctness of the statement of accounts, the factum of his signature on the cheque and that it was handed over much later than the issuance of the sanction letter and disbursal of the loan that he cannot take any assistance of these judgments which he relies upon.
37. Identical are the facts in the case of Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513. There a blank cheque was issued and therefore, on facts, the Supreme Court found that the respondent could not prove that he had sold woolen carpets to the appellant on 6.8.1994 and in discharge of the said liability, the appellant before the Supreme Court had issued two cheques which 26 / 28 revn.180.2012.doc were ultimately dishonoured. That is how the finding of fact based on which the legal principle came to be rendered (see paragraphs 24 and 25).
38. In the above circumstances, none of these decisions are of any assistance to the applicant. I do not find any substance in the three contentions which were raised before me. Each one of them being without any merit, there is no alternative but to dismiss this revision application.
39. The Revision application is accordingly dismissed. Rule is discharged.
40. In view of the dismissal of the Criminal Revision Application, nothing survives in the Criminal Application No.121 of 2013 and the same is disposed of as such.
41. At this stage, Mr.Jain, learned Counsel appearing for the Applicant, prays that the order enlarging the Applicant on bail passed by the learned Single Judge on 25.5.2012 be continued for a period of eight weeks. That request is opposed by the Advocate appearing for Respondent No.2 - original Complainant.
27 / 28 revn.180.2012.doc
42. The Applicant was enlarged on bail on the condition of depositing a sum of Rs.10 lacs and thereafter, it appears that the Applicant has deposited a further sum of Rs.1 crore in this Court.
43. Since the Applicant has lost before the Appellate Court and equally this Revision Application is dismissed, while continuing the order enlarging the Applicant on bail, but without prejudice to the rights and contentions of all parties, I permit the Respondent No.2 -
original Complainant to withdraw the sum of Rs.1 crore deposited in this Court with accrued interest. The withdrawal will be without prejudice to the rights and contentions of both sides. The withdrawal is permitted because despite being convicted and sentenced for an offence punishable under Section 138 of the Negotiable Instruments Act, 1888 for not honouring the cheque in the sum of Rs.7,05,18,265/-, the Applicant has neither paid any sum nor brought substantial amount in this Court. Hence, the ad-interim order is continued on this condition for a period of eight weeks.
(S.C. DHARMADHIKARI, J.) 28 / 28
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