IMPORTANT POINT
The main legal point established in the judgment is that for an offence under Section 138 of the N.I.Act, there should be a legally enforceable debt or other liability subsisting on the date of drawal of the cheque, and the concept of consideration is crucial in determining the enforceability of the debt or liability.

JUDGMENT :

1. The present revision application is filed under section 397 read with section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C”) challenging the legality, validity and propriety of the judgment and order dated 28.09.2011 and 25.06.2015 passed by the learned Additional Chief Judicial Magistrate and learned 6th Additional District and Sessions Judge, Mahesana in Criminal Case No. 890 of 2010 and Criminal Appeal No. 125 of 2011 below Exh.46 respectively whereby, the appellate court had dismissed the Criminal Appeal no. 125 of 2011 confirming the judgment and order dated 28.09.2011 passed by the learned trial court convicting the present petitioner- original accused for offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “N.I.Act”) and order to undergo sentence of simple imprisonment of one year along with fine of Rs.10,000/- and in default, simple imprisonment of further period of three months was imposed.

2. The facts of the case is that the respondent no. 2 had filed private complaint under section 138 of the N.I.Act for the dishonouring of the cheque of Rs.10,60,000/- being Criminal Case No. 890 of 2010. On the conclusion of the trial petitioner was held guilty and ordered the sentence as aforesaid.

2.1. Against the judgment and order of learned trial court, applicant has filed the Criminal Appeal before the learned appellate Court along with the application below Exh.5 for the purpose of suspension of sentence. Learned trial court, at the end, dismissed the Criminal Appeal being No. 125 of 2011 and has confirmed the judgment and order of conviction of the learned trial court. Being aggrieved and dissatisfied with the above judgment and order, the present revision application is filed.

3. Heard the learned advocate Mr.Vaibhav Sheth for the applicant and learned advocate Ms.Tejal Vashi for the respondent no.2.

3.1. Learned advocate Mr.Vaibhav Sheth submits that initially the transaction which was carried out between the complainant and the present applicant was with regard to the purchase of the vehicle and the loan was sanctioned for an amount of Rs.13,15,000/- on 07.05.2007 and the hypothecation agreement was executed to purchase the vehicle bearing No. TATA LPT 2515 697 TCIC 6X registration no. GJ-18X-9085.

3.2. The repayment of loan was fixed in 60 monthly installments of Rs.33,000/-. The applicant has paid the total amount of installment of Rs.8,30,300/- which was admitted during the cross-examination by the complainant and thereafter, the respondent has taken the possession of the vehicle and it was sold to the other person and recovered amount of Rs. 3,63,000/-, however, despite the same, the respondent, accused had deposited the cheque which was lying as a security cheque with them for the amount of Rs. 10,60,000/- and on dishonouring of the same, the impugned complaint came to be filed.

3.3. Learned advocate Mr.Vaibhav Sheth submits that as per the loan agreement which was produced below Exh.21, a specific clause is mentioned for consequence on event of default, clause 12 wherein, it is provided that lenders will issue the notice for terminating the agreement, demand the product for which the loan was availed, sell the product to public or private persons, would issue the notice intimating to pay the remaining amount and would exercise the right available under the law to recover the amount.

3.4. Learned advocate Mr.Vaibhav Sheth submits that in any case the respondent lender is not entitled to mis-use the security cheque which is lying as per the agreement which is executed between the parties.

3.5. Learned advocate Mr.Vaibhav Sheth submits that as both the courts below committed material error in not considering the legality and validity of this agreement and passed the impugned judgment and order. Therefore, the present revision application is required to be allowed and the judgment and order passed by both the learned court