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2014 Supreme(Bom) 367
In the High Court of Bombay at Nagpur
M.L. TAHALIYANI, J.
Dadarao Mukaji Dongre
Versus
Vasantrao s/o. Amrutrao Desmukh & Another
Criminal Revision Application No. 161 of 2011
Decided On: 13-02-2014
For the Applicant: Pradeep Marpakwar, Counsel.
For the Respondents: R1, Anjali Joshi, Counsel, R2, A.K. Bangadkar, Additional Public Prosecution.
The judgment emphasizes the importance of probablising the defense in cases involving dishonor of cheques under Section 138 of the Negotiable Instruments Act.
Headnote:
Negotiable Instruments Act - Section 138 - Conviction for dishonor of cheque - Applicant's defense rejected - Concurrent finding of facts of two Courts below upheld
Fact of the Case:
The applicant was convicted for the offence punishable under Section 138 of Negotiable Instruments Act for dishonor of a cheque and was sentenced to pay a fine and compensation to the respondent. The applicant claimed that the cheque was given as a refund of a hand loan, while the respondent claimed that the cheque was given in repayment of a loan taken from the applicant.
Finding of the Court:
The trial Court rejected the applicant's defense, considering it to be an afterthought, and concluded that the applicant had failed to prove his case. The higher Court upheld the concurrent finding of facts of the two Courts below and dismissed the revision application.
Issues: The main issue was the conflicting claims of the applicant and the respondent regarding the nature of the transaction involving the cheque.
Ratio Decidendi: The Court upheld the lower Courts' rejection of the applicant's defense, emphasizing that the defense was considered an afterthought and that the applicant had failed to probablise his case.
Final Decision: The revision application was dismissed, and the applicant was directed to deposit the fine and compensation amount within a specified period, failing which the trial Court would take necessary steps for execution of the order.
1. Heard learned counsel Mr. Marpakwar for the applicant, learned counsel Mrs.Joshi for respondent No.1 and learned Additional Public Prosecutor Mr. Bangadkar for respondent No.2.
2. Admit. Heard finally by consent.
3. The applicant has been convicted for the offence punishable under Section 138 of Negotiable Instruments Act by the learned trial Magistrate and has been sentenced to pay a fine of Rs.5,000/- in default to undergo simple imprisonment for a period of one month. The applicant is further directed to pay compensation of Rs.60,000/- to respondent No.1.
4. Admittedly, cheque was given by the applicant to respondent No.1. It was the case of respondent No.1 before the trial Court that the applicant had taken hand loan of Rs.60,000/-. He had given a cheque by way of refund of the said hand loan. The case of the applicant before the trial Court was that in fact respondent No.1 had taken loan from the applicant and that the applicant had therefore given a cheque to respondent No.1. It was further defence of the applicant that the applicant had instructed respondent No.1 to deposit the cheque after giving intimation to the applicant. The cheque was allegedly deposited without intimation to the applicant.
5. I have gone through the judgments of both the Courts below. Both the Courts below have rejected the defence of the applicant. It is specifically stated by the trial Court in the judgment that the first ever opportunity available to the applicant was to mention all these things in his reply to the statutory notice. The defence taken by the applicant was considered to be an afterthought. The person in whose presence cheque was, allegedly by way of hand loan, given by the applicant to respondent No.1 had not been examined.
6. As such, the trial Court has come to the conclusion that the applicant had failed to probablise his case. Since there is concurrent finding of facts of two Courts below and since there is nothing perverse in the judgments, I am not inclined to interfere with the judgments passed by the Courts below.
7. The revision application stands dismissed. Ad interim or interim order, if any, stands vacated. Applicant shall deposit the fine and the balance compensation amount within a period of eight weeks, otherwise the trial Court shall take necessary steps for getting the order executed.
Application dismissed.
