BALABHAU HARIBHAU KAVANPURE Vs. SAI AUTO AGENCIES

JUDGEMENT

(1.) In this revision, challenge is to the judgment and order dtd. 10/4/2018, passed by learned Sessions Judge, Amravati, whereby the learned Sessions Judge dismissed the appeal filed by the applicant/ accused against his conviction and sentence for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the N.I. Act" for short), awarded by learned Judicial Magistrate, First Class, Court No.3, Amravati. Learned Judicial Magistrate, First Class, Amravati had sentenced the accused to undergo rigorous imprisonment for three months and to pay compensation of Rs.1,00,000.00 (Rupees One lakh only) and in default to suffer simple imprisonment for six months.

(2.) In this judgment, the parties would be referred by their nomenclature in the complaint. The applicant is the original accused and the non-applicant is the original complainant. The non-applicant is a partnership firm represented by its partner. It is the case of the complainant that the accused on 10/10/2008 had purchased 'Eicher 485' tractor on credit from the complainant. At the time of delivery of the tractor, the accused had not paid a single pie. Delivery of the tractor was made on credit due to cut-throat competition in the market and to achieve the target of the manufacturer. The accused had informed the complainant that he would be applying for loan from the bank and after sanction of the loan, he would pay the price of the tractor.

(3.) It is stated that in December-2013, the accused approached the partnership firm of the complainant and informed that the bank has approved the loan for purchase of tractor. However, the bank has put a condition that he should deposit Rs.95,000.00 towards down payment. He had no money. He made a written request to the partner of the complainant to advance him Rs.95,000.00 for being deposited as down payment in the bank. The complainant, considering the difficulty of the accused, on 10/10/2008 paid Rs.95,000.00 in cash. The accused, on that date, executed 'Usanwar Chitthi'. He agreed to return the amount on or before 30/3/2009. In order to secure the interest of the complainant, he issued a cheque dtd. 30/3/2009 for Rs.95,000.00, drawn on his account maintained with Amravati District Central Cooperative Bank, branch Haturna. It is further stated that on 18/12/2008, the accused came to the showroom to deposit Rs.1,50,000.00 and demanded the receipt. The complainant suggested him to deposit only Rs.5,000.00 against hand loan of Rs.95,000.00. The accused thereafter deposited Rs.5,000.00, but failed to repay Rs.90,000.00. The complainant, therefore, presented the cheque for encashment on 29/4/2009. It was dishonoured on the ground of "insufficient funds" in the account of the accused to honour the cheque. The complainant issued notice dtd. 7/7/2009. Notice was received by the accused. The accused neither replied the notice nor repaid the amount. On filing of the complaint, learned Magistrate took cognizance and issued process against the accused.