FAZAL KHALIL AHEMAD SHAIKH Vs. NANDKISHOR RAMNIVASJI AGRAWAL

JUDGEMENT

(1.) Present application has been filed by the original accused for suspension of substantive sentence, during the pendency of the revision, imposed against him in S.T.C.C. No.937/2009 by learned Judicial Magistrate First Class (Court No.5), Latur on 15.04.2015 after holding him guilty of committing offence punishable under Section 138 of the Negotiable Instruments Act; which has been thereafter confirmed by the learned Additional Sessions Judge-4, Latur on 04.05.2019 in Criminal Appeal No.50/2015.

(2.) Heard learned Advocate Mr. T.M. Venjane for the applicant, learned Advocate Mr. M.P. Kale for respondent No.1-original complainant and learned APP Mr. B.V. Virdhe for respondent No.2-State.

(3.) It has been vehemently submitted on behalf of the present applicant-original accused, that both the Courts below have not appreciated the evidence properly. They erred in holding the accused guilty of committing offence punishable under Section 138 of the Negotiable Instruments Act. It was the defence of the accused, that the disputed signed cheque as well as two other signed cheques as well as one blank cheque was taken by the complainant, as a security towards the financial transaction with him, in the year 2006-07. That amount was repaid by the accused to the complainant. However, the complainant has misused one of those cheques. The accused has led evidence in defence. Two postmen were examined. So also the applicant has produced documentary evidence in the form of Ration card, Gas connection card, Electricity bill, statement of Bank account, Income Tax return. All the said defence evidence was to show, that he has not received the statutory notice and his address is something different than the address on which the statutory notice was issued. The defence of the accused has not been considered by both the Courts below. If they would have considered it, they would have definitely arrived at the conclusion, that the accused has rebutted the presumption of Section 139 of the Negotiable Instruments Act. Both the Courts below failed to consider that the disputed cheque Exh.34 was crossed cheque, and therefore, the provisions of Section 138 of the Negotiable Instruments Act were not applicable. Both the Courts failed to consider that there was material alternation of digits of dates. Further, the complainant failed to prove the statement of his Bank account to show that he had extended loan to the accused. Presumptions under Section 118 and 139 of the Negotiable Instruments Act were rebuttable presumptions. It was necessary for the complainant to prove the basic facts to attract the presumptions. Complainant had failed to prove the pre-existing liability prior to the date of the disputed cheque. In other words, the complainant had failed to prove that the disputed cheque was issued in discharge of legal debt or liability. There is possibility of every success in favour of the present applicant, and therefore, sentence deserves to be suspended till the disposal of the revision.