Alokbhai Pravinchandra Desai Managing Partner Of M/s. Yash Chemicals v. Jayendrabhai Bhogilal Thakkar

1. Rule. Mr. Kshitij Vakil, learned advocate waives service of notice of rule on behalf of the respondent No.1 - original complainant and Mr. K.P. Raval, learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent No.2-State. Considering the facts and circumstances of the case, the petitions are taken up for final disposal.

2. Both these revision petitions are arising between the same parties and for similar dispute though factual details of cheques and amount in question are different, and therefore, they are heard together and decided by this common judgment.

3. Heard Mr. Himanshu C. Desai, learned advocate for the applicants in both the petitions, Mr. K.P. Raval, learned Additional Public Prosecutor for the State being a formal party, whereas Mr. Kshitij P. Vakil, learned advocate for private respondent being original complainant. The petitioners are original accused, they are referred in the respective capacity before the trial court.

4. The complainant herein had filed a complaint under Section 138 of the Negotiable Instruments Act (for short "N.I. Act") before the court of learned Chief Judicial Magistrate at Vadodara. The complaint being Criminal Case No.11671 of 2009 is for three cheques being cheque No.18770 dated 2.6.2008 for Rs. 2,50,000/-, cheque No.18771 dated 5.6.2008 for Rs. 3,00,000/- and cheque No.18772 dated 10.6.2008 for Rs. 3,50,000/- i.e. in all Rs. 8.00 lacs. It is the case of the complainant that accused has issued such cheques to repay his dues which is to the tune of Rs. 14.00 lacs. It is further contended that initially to pay such amount of Rs. 14.00 lacs, four cheques were issued for the period between 12.5.2007 to 20.6.2007. However when accused could not arrange for payment of three cheques bearing Nos. 892316, 892317 and 892318, the accused had issued the aforesaid three new cheques for the period between 2.6.2008 to 10.6.2008. However, when such cheques were bounced i.e. returned unpaid by the banker of the accused, the complainant has no option but to initiate criminal proceedings by filing a complaint as aforesaid.

5. Whereas Criminal Case No. 7762 of 2009 is filed by the complainant for non-payment of an amount of Rs. 5.00 lacs of the remaining cheque then three previous cheques as per first complaint. Therefore, practically there is non-payment of all the cheques by the banker of the accused for which considering the date of cheques, different complaints were filed. In such second complaint the concerned cheque No.18773 is dated 15.6.2008 for Rs. 5.00 lacs.

6. Therefore, when amount in both the cases are between the same parties and for the same transaction, the factual details of both the cases are common, so also the defence by the accused and, therefore, one set of argument is advanced and thereby discussion on merits is also only on one set which would determine both the revision petitions, though it is separately numbered and though it is for separate cheques and for different amounts.

7. The sum and substance advanced by the accused is to the effect that there is no evidence to prove that practically the complainant was ever having any fund available at his end to advance it to the accused, and thereby when there is no evidence regarding any amount borrowed by the accused from the complainant, there is no reason for the accused to issue cheques but such cheques were issued only towards security, and therefore, in absence of any legal dues, the complaint under Section 138 of the Negotiable Instruments Act is not tenable. Whereas the complainant has pointed out that in fact he has disclosed the names of the persons from whom he has borrowed the amount so as to advance it to the accused because of their relationship and friendship. It is further contended by the accused that, if complainant does not disclose the transaction between him, and such persons whose names are disclosed, both in the complaint itself as well as in the deposition of the complainant, then it is believed that no such amount was available to the complainant for advancing it to the accused and, therefore, there is no cause of action for filing such complaint when there is no legal dues.

8. However, perusal of the record goes to show that practically there is no illegality or irregularity in either of judgments which are under challenge. It is undisputed fact that first trial court has convicted the accused by its judgment and order dated 16.3.2012 and awarded simple imprisonment of one year and also awarded compensation of Rs. 8.00 lacs in one case and Rs. 5.00 lacs in another case being the amount of cheques in question. The perusal of such judgments makes it clear that the trial court has considered all the relevant facts and circumstances and issue raised before it by both the sides for coming to the conclusion that the accused is liable to punishment under the provisions of Section 138 of the Negotiable Instruments Act. Thereby the complainant has proved that he is in possession of cheques in question being negotiable instruments which were issued by the accused for making the payment of the dues, and when such amount could not be recovered from the banker of the accused, the complainant has served statutory notice to the accused, and after non-compliance of request in such notice, the complainant has no option but to prefer the complaint.

9. So as to prove the fund available at the hands of the complainant, the complainant has examined witness at Exh.26, who is, though cousin brother of the complainant, has categorically deposed that he had given Rs. 2.00 lacs to the complainant so as to advance it to the accused. Similarly complainant has also examined Jashbhai Parmar from whom he has obtained the amount which is ultimately advanced to the accused. Whereas the stand of the accused before the trial court is altogether different and to the effect that he has given a blank cheque i.e. without endorsing date, name and amount to be paid, but with signature to the complainant which are misused by the complainant and that complainant has never advanced any amount to them. Whereas, in cross-examination, the complainant admits that in fact the writing of the name of the complainant in the cheque are by him only. However, he did not admit that such cheques were issued only towards security and that he has never paid any amount to the accused as advanced, against which he got such cheques.

10. Whereas the accused had also tried to prove by witness at Exh.29 namely Pareshbhai Patel, an Accountant of the accused that complainant has never advanced any such amount to the accused, and therefore, it was not reflected in the accounts of the accused. However, he admits that the accused had given the cheques to the complainant in his presence against which complainant had given voucher to them. If it is so, then there is no question of any entry at all in the account books of the accused inasmuch as now the accountant has admitted that the cheque is issued and voucher is accepted. If such transaction had taken place, then at least it must have been reflected in the account book, and therefore, it is clear that the accused are trying to take disadvantage of their own wrong by not disclosing such transaction in their account book but their own witness and their accountant admits that the accused had given cheques to the complainant in his presence. In that case statutory presumptions under the Act can certainly be applicable whereby it is to be presumed that cheques were issued towards such some legal liability only and thereby it is for the accused to explain why cheques were issued and why they are unpaid. More surprisingly though the cheques are of the year 2007-2008, the accountant of the accused categorically admits that he is not aware of the transaction, if any, taken place between the parties before the year 2009. Therefore, it is now clear and certain that practically this witness is also a chance witness by the accused, but, otherwise, he is not aware about the real facts, and therefore, there is nothing wrong in taking help of presumption, which is statutory, by the trial court, and more particularly, when it was not properly rebutted by the accused.

11. Minute details of the development between the parties and the documentary evidence is well described in the judgment of the trial court, and therefore, except the point which are raised in these petitions, all such details are not required to be reproduced.

12. Similarly, the appellate court being the Sessions Court has also taken care of all the material evidence on record, and now it has been clarified on record that the vouchers referred to by one of the witnesses of the accused are practically not proved on record. But when it was examined by the Sessions Court, it is found that they are blank vouchers, and therefore, it is clear that the accused are practically taking chance to succeed in the trial, and to get rid of the conviction so also the payment of amount of cheques. It is also to be recollected here that in fact the accused have filed a complaint under Section 200 of the Code of Criminal Procedure before the trial court complaining that the cheques are being obtained by the complainant by administering threat of killing the accused and that the cheques are got up one. However, when such complaint was dismissed so also the Criminal Revision Application No. 66 of 2010 by the Sessions Court against dismissal of such complaint and, therefore, now practically such defence and the stand has no substance.

13. In short, the judgment of the Sessions Court is also in detail and the petitioner has failed to point out any irregularity or any illegality in any manner whatsoever in the impugned judgment and order so as to interfere with it in such revisional jurisdiction, where otherwise also the scope of the court is limited. It is a settled legal position that under revisional jurisdiction, the court should be slow in re-interpreting the evidence i.e. the findings of fact more particularly, when it is confirmed by the two courts below. Therefore, the jurisdiction of this court is limited to the extent of interference only in case of grave irregularity which if at all amounts to illegality and injustice to the parties. If there is no material or grave irregularity in the proceedings before the two courts below, it would be difficult for the revisional court to quash the concurrent findings of fact.

14. Though the law is settled as above, the learned advocate for the petitioner has relied upon the following citations.

(1) Sudhir Kumar Bhalla v. Jagdish Chand and others reported in (2008) 7 SCC 137 [LQ/SC/2008/1064] wherein the Honble Supreme Court has considered the interpolations in the cheques determining it as illegal and therefore remanded the matter back to the High Court for fresh consideration. However when there is no such evidence on record of this case, there is no reason to rely upon the said judgment. The other issue in the judgment is regarding issuance of cheque towards security. When it is held that criminal liability under the provisions of Section 138 of the N.I. Act are attracted only on account of dishonour of the cheque issued in discharge of liability or debt, but not on account of issuance of cheque towards security. Though it may be legal proposition, the fact remains that in the present case only pleadings regarding security is there, but otherwise there is no other cogent and reliable evidence to confirm that the cheques issued by the accused were only towards security and not towards discharge of liability or debt. The fact remains that when the cheques were issued for different amounts with endorsement of different dates, it is not towards security but it is towards payment of amount of debt, and therefore, this judgment would not help the petitioner to succeed in this petition.

(2) Vijay v. Laxman and another reported in (2013) 3 SCC 86 [LQ/SC/2013/151] wherein the Honble Supreme Court has dealt with the issue relating to the transaction under the N.I. Act, and held that, if accused offering a plausible explanation in the face of unusual facts pleaded by complainant then accused is entitled to acquittal. However here also there is no proper explanation except the pleadings that the cheques were issued towards security, and therefore, in absence of evidence in rebuttal against statutory and legal presumption this judgment would not help the accused to succeed in this revision. At the same time, it is quite clear and obvious that in the same judgment, the Honble Supreme Court held that whether burden of rebutting the presumption has been discharged or not, depends upon the facts and circumstances of each case, and therefore, practically the said judgment is per incuriam i.e. based upon that case, and thereby, in absence of evidence in rebuttal of statutory presumption, it cannot be said that only because of said judgment in law journal, in all the cases only if some stand is taken for issuance of cheque, then it is believed as a evidence in rebuttal against statutory presumption. Therefore this judgment would also not help the petitioner.

(3) Vinita S. Rao v. Essen Corporate Services Private Limited and another reported in (2015) 1 SCC 527 [LQ/SC/2014/991] wherein the Honble Supreme Court has considered the issue of defence of security, but when the High Court has not dealt with such submission at all though it was raised in the appeal memo, it was held that on the basis of averments made in the complaint and on the basis of the communication between the parties when accused has contended that the cheques were issued as a security and there was no crystallised liability or outstanding dues and there was no legally recoverable debt, the complaint was not tenable. However, like a previous case, here also, because of non-attention of the High Court, the matter was remanded back to the High Court for deciding afresh. Therefore this judgment would also not help the petitioner.

15. It is also undisputed fact that the accused have failed to take similar defence in reply to the statutory notice by the complainant, and in his deposition before the court, though he has tried to twist the fact, he has no option but to admit that he has asked for amount of Rs. 14.00 lacs from the complainant, but the complainant has asked for the cheques from him in advance stating that he will encash such cheques and will pay the amount to him. He has also admitted that he has not taken any other defence in reply to the statutory notice and that his complaint against the complainant regarding threat in getting the cheque has been dismissed, so also revision. Therefore, admission of the accused regarding his demand of amount of Rs. 14.00 lacs from the complainant negatived his other defence and thereby it is not much material if petitioner would not prove that how he collected the amount of Rs. 14.00 lacs to be paid to the accused. The overall evidence and discussions makes it clear that in fact the accused has not only asked for the amount of Rs. 14.00 lacs, but had also issued the cheques because the record and evidence shows that initially the cheques were issued in the year 2007, and when the accused could not make arrangement in his bank, he had requested the complainant not to submit those cheques for realisation and issued fresh and new cheques. In that case, all his defence viz. the cheques were issued against security, there is no legally enforceable debt or that petitioner does not have fund with him so as to advance such huge amount to him, are negatived.

16. In view of above facts and circumstances of the case, I do not see any substance in the revision petitions when there are no irregularities or illegalities in the impugned judgment and order of the trial court and, therefore, I do not see any reason or substance to interfere with the impugned judgment and order. Hence, the revision petitions are dismissed. Rule is discharged in both the petitions. Interim relief, if any, shall stand vacated. Record and Proceedings, if any, shall be sent back to the trial court forthwith.

After pronouncement of the aforesaid judgment, learned advocate for the petitioner is seeking to stay operation of this judgment so as to enable the petitioner to approach the Honble Supreme Court. He is requesting to stay it for eight weeks. However, considering the fact that this is a criminal revision against concurrent findings by two courts below whereby the petitioner has to pay an amount of Rs. 14,00,000/-, it can be considered as an attempt to delay the payment under the pretext of such litigation and, therefore, no stay can be granted. In view of such fact, learned advocate for the petitioner has pointed out that, out of total amount, they have already deposited Rs. 6,00,000/-, and it is his submission that they will not ask for releasing of such amount in his favour, if stay is granted. However, such amount is towards fine and it cannot be refunded to the petitioner. In view of above facts and circumstances, the operation of this judgment is stayed for four weeks from today.