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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
M.G.Sewlikar, J.
Radhyesham Ganeshlal Dhoot – Appellant
Versus
Vishnukumar Bansilal Kalantri – Respondent
Criminal Revision Application No. 163 of 2016, 168/2016, 167/2016, 171/2016, 170/2016, 165/2016 in Appln/3899/2016, 169/2016, 172/2016, 166/2016
Decided On : 11-03-2022
V.D.Sapkal, Advocate, S.R.Sapkal, Advocate, Kulkarni Mukul S., Advocate, A.B.Chormal, Advocate, C.R.Deshpande, Advocate, C.C.Deshpande, Advocate, S.B.Narwade, Advocate
Presumption under Sec. 139 of the N.I. Act and the validity of the M.O.U. were central to the court's decision.
Headnote:
N.I.Act - Conviction under Sec. 138 of the Negotiable Instruments Act - Sec. 357 (3) of the Code of Criminal Procedure - [Sec. 138, Sec. 357 (3)] - The court discussed the presumption under Sec. 139 of the N.I. Act, the validity of the M.O.U., and the relevance of earlier transactions in relation to the execution of the M.O.U. The court upheld the findings of the lower courts, stating that the revisions lacked substance.
Fact of the Case:
The applicant was convicted under Sec. 138 of the Negotiable Instruments Act and sentenced to Simple Imprisonment for six months and a compensation amount. The case involved the issuance of nine cheques, their dishonor, and the subsequent legal proceedings.
Finding of the Court:
The court found that the M.O.U. acknowledged the debt owed by the applicant, and the cheques were issued as security for the debt. The court upheld the lower courts' findings and dismissed the revisions.
Issues: The issues included the validity of the M.O.U., the purpose of the cheques, and the relevance of earlier transactions in relation to the M.O.U.
Ratio Decidendi: The court relied on Sec. 139 of the N.I. Act to establish the presumption that the cheques were issued for the discharge of a debt. It also upheld the validity of the M.O.U. and rejected the argument regarding the relevance of earlier transactions.
Final Decision: The revisions were dismissed, and the applicant was directed to surrender before the trial court.
JUDGMENT
1. The applicant was convicted by the learned Judicial Magistrate, First Class, Latur, District Latur, by her order dtd. 9/5/2014, thereby, convicting the applicant under Sec. 138 of the Negotiable Instruments Act (for short "N.I.Act') and sentenced to suffer Simple Imprisonment for six months and the applicant was directed to pay amount of Rs.6,00,000.00 to respondent No. 1, within a period of three months, as compensation under Sec. 357 (3) of the Code of Criminal Procedure (for short "Cr.P.C.').
2. The applicant has preferred appeals against the said conviction and sentence bearing Criminal Appeal No. 92 of 2014. The learned Additional Sessions Judge, Latur dismissed the appeal and passed the judgment and order dtd. 11/7/2016. This order is impugned in these revisions.
3. At the outset, it needs to be mentioned here that the applicant had issued nine cheques. Against dis-honour of these cheques, nine complaints were filed by complainant. The learned Magistrate disposed of all these complaints by one judgment. The learned appellate Court has also followed the same course. The applicant has preferred nine revisions and they can be disposed of by Criminal Revision No. 163 of 2016.
4. The facts in all these revisions are same, except variations in the amount of cheques and the dates of issuance of cheques.
5. Facts leading to these revisions are that the complainant was doing transaction of sale and purchase of shares through accused since last thirteen years. The accused/applicant is a broker and runs his business named and styled as "Radhika Investements', at Latur.
6. On the instructions of the applicant, the respondent opened a De-Mat account bearing 1201370000054854 with Mehta Equities Ltd., Mumbai and at the instance of the applicant, respondent No. 1 had transferred shares of Reliance Industries Ltd and State Bank of India in the De-mat account of the applicant bearing No. 10216689 of IDBI Bank during the period from 8/12/2008 to 9/4/2009. The applicant had sold the said shares and received amount of Rs.1,10,00,000.00. However, the applicant did not pay the said amount to respondent No.1. The applicant kept on avoiding the payment of amount to respondent No. 1 citing his continuously worsening economic condition. The applicant had promised to pay said amount in installments. After negotiations, the schedule and mode of payment was agreed between the applicant and the complainant in the presence of mediators and witnesses namely Ashok Bhutada, Hukumchand Kalantri and Shrenik Gandhi. Accordingly on 11/1/2010 the applicant had executed a memorandum of understanding (for short "M.O.U.') in the presence of these witnesses in favour of respondent No. 1. This M.O.U. was notarized before a Notary. As per terms and conditions of M.O.U., the applicant agreed to pay an amount of Rs.1,10,00,000.00 to the Complainant/respondent No. 1 herein, in suitable installments. Pursuant to that the applicant issued post dated cheques in favour of respondent No. 1. Details of those cheques are thus : Sr. No. Cheque Number Date Amount in Rupees Name of Bank
1. 194837 30/6/2010 Rs.6,00,000.00 State Bank of Hyderabad
2. 194838 30/9/2010 Rs.6,00,000.00 State Bank of Hyderabad 3. 194839 30/12/2020 Rs.6,00,000.00 State Bank of Hyderabad 4. 194840 31/3/2011 Rs.6,00,000.00 State Bank of Hyderabad 5. 194841 30/6/2011 Rs.6,00,000.00 State Bank of Hyderabad 6. 194842 30/9/2011 Rs.6,00,000.00 State Bank of Hyderabad
7. When respondent No. 1 presented these cheques for encashment, they were dishonoured. Therefore, respondent No. 1 issued notice, calling upon the applicant to pay the amounts of cheques. The applicant replied to the notice. Since the amounts were not paid within the specified time, respondent No. 1 presented the complaints in all nine cases of dishonour of cheques.
8. Process was issued and the presence of the applicant was secured. Respondent No. 1 tendered his evidence i.e. the evidence of his Chartered Accountant and the evidence of
