2015 Supreme(Bom) 107
U.V.BAKRE
Bipin Mathurdas Thakkar – Appellant
Versus
Samir alias Sameer Dessai – Respondent
Advocates:
Advocate Appeared
For the Petitioner:Deep Shirodkar, Advocate.
For the Respondents:R1, A.D. Bhobe, Advocate, R2, M. Pinto, Additional Public Prosecutor.
Judgement Key Points
Based on the provided legal document, here are the key points regarding the case:
- The case involves a Criminal Revision Application filed by the accused, Bipin Mathurdas Thakkar, against the judgment and order of the Appellate Court and the Judicial Magistrate, First Class, concerning a dispute under Section 138 of the Negotiable Instruments Act, 1881 (!) (!) .
- The complainant alleged that the accused owed Rs. 25,00,000/- for business purposes, executed a demand promissory note dated 01.11.2011, and issued a cheque dated 05.12.2011 for the same amount, which was subsequently dishonored due to insufficient funds (!) .
- The accused pleaded not guilty, claiming that the demand promissory note and the cheque were forcibly taken by the complainant and that no other transaction existed after the repayment of a previous loan in August 2011 (!) .
- The lower courts held that the complainant proved the existence of a legally enforceable debt beyond reasonable doubt and convicted the accused, sentencing him to simple imprisonment and compensation (!) .
- The High Court observed that the accused failed to prove that the note and cheque were signed under coercion, noting the lack of a police complaint and the voluntary nature of the notary's involvement (!) .
- The court noted that the accused admitted in his cross-examination that he was supposed to pay an amount when signing the promissory note, which contradicted his claim that the earlier transaction was fully settled (!) .
- Regarding the issue of "unaccounted cash," the court distinguished the present case from Sanjay Mishra, noting that the failure to disclose the amount in Income Tax returns does not automatically rebut the presumption under Section 139, especially since the complainant had the capacity to advance large sums as evidenced by previous transactions (!) (!) .
- The court relied on precedents such as M.S. Narayan Menon alias Mani and Vinay Parulekar to affirm the standard of proof required to rebut the presumption under Section 139 (!) .
- The High Court concluded that there was no perversity or jurisdictional error in the impugned judgments and dismissed the revision application, ordering the accused to surrender and undergo the imposed sentence (!) (!) .
JUDGMENT
1. Heard Mr. Shirodkar, learned Counsel for the petitioner and Mr. Bhobe, learned Counsel for the respondent no.1. Parties submitted that copies of relevant documents are on record. Hence records and proceedings from the lower Courts are not called for.
2. Rule. Rule made returnable forthwith. By consent, heard forthwith.
3. This revision application has been filed against the judgment and order dated 20/09/2014 passed by the learned Additional Sessions Judge, South Goa, Margao ('Appellate Court', for short) in Criminal Appeal No. 41 of 2014 and judgment and order dated 21/02/2014 passed by the learned Judicial Magistrate, First Class at Canacona ('J.M.F.C', for short) in Criminal Case No. 4/OA/NI/2012. The petitioner was the accused in the said criminal case whereas the respondent no.1 was the complainant. Parties shall hereinafter be referred to as per their status in the said criminal case.
4. The complainant had filed the complaint against the accused under Section 138 of the Negotiable Instruments Act, 1881('N.I. Act', for short). The case of the complainant was as follows:
The complainant and the accused were known to each other as they were businessmen by profession. The
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