RAFIQUE RAHEMAN SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Non applicant No. 2 filed complaint under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the 'Said Act') against the applicant in the court of Judicial Magistrate First Class 2nd Court, Jalgaon Jamod (hereinafter referred to as learned 'trial Judge'). The learned trial Judge conducted trial against the applicant and by judgment and order dated 10.10.2005 convicted the applicant under Section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for one year and to pay a fine of Rs. 1,60,000/-. It was also ordered that in default of payment of fine, the applicant should undergo simple imprisonment for three months. It was also ordered that out of fine, which will be deposited, a sum of Rs. 1,60,000/-be paid over to non applicant No. 2complainant. This order dated 10.10.2005 was challenged by applicant by filing Criminal Appeal No. 23/2005 in the Sessions Court at Khamgaon. The learned Additional Sessions Judge, Khamgaon by judgment and order dated 06.09.2007, dismissed the appeal. Against both these orders, this revision application has been filed.

(2.) Few facts necessary for the disposal of the present revision are as under. According to non applicant No. 2-he had paid Rs. 50,000/-on 06.08.2003, Rs. 60,000/-on 09.08.2003 and Rs. 50,000/-on 14.08.2003. According to non applicant No. 2, the applicant had delivered to non applicant No. 2 six instruments in the nature of cheques drawn on Buldhana Urban Co-operative Credit Society, Jalgaon Jamod (hereinafter referred to as the 'said Society'). Those six instruments were delivered towards repayment of loan which was advanced to the applicant. Those six instruments got dishonoured when tendered in the Bank for realization and, therefore, non-applicant No. 2 issued notice at Exh.-28 dated 16.03.2004 being statutory notice under Section 138 of the said Act. The applicant replied to the said notice by reply dated 31.03.2004 at Exh.-87 through his Advocate Mr. Karim. As the applicant did not comply with the statutory notice, non applicant No. 2 filed complaint as mentioned aforesaid.

(3.) The applicant presented his defence on following terms. Non applicant No. 2 was running Chit Fund and the blank instruments have been misused by non applicant No. 2. It was also contended that applicant was liable to pay only Rs. 20,000/-to non applicant No. 2 and six instruments were given by way of security to non applicant No. 2. It was also sought to be contended that the said instruments pertain to Account Nos. 85 and 49 maintained by the said society and those accounts were of two partners of Shaha Agencies and signatures of both persons were necessary. It was also contended that loan of Rs. 20,000/-was paid by applicant and six instruments were demanded back. However, non applicant No. 2 did not return the same. It was also contended that said six instruments were lost.