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TMI Blog2016 (7) TMI 1692X X X X Extracts X X X X X X X X Extracts X X X X ..... o directed the accused to pay the amount of cheque to the complainant. 3. Being aggrieved by such judgment of conviction, petitioner has preferred an appeal before the Sessions Court at Modasa. The Additional District Judge, Modasa by its impugned judgment and order dated 30th November, 2011 dismissed such Criminal Appeal No. 52 of 2007 and thereby confirmed the judgment and order of conviction of the Trial Court. The Sessions Court has directed the petitioner to surrender within 15 days. 4. When such concurrent judgment of conviction has been assailed in the revision, this Court has extended time to surrender and ultimately stayed execution of the impugned judgment on condition that petitioner shall deposit 50% amount of the cheque within a month. Therefore, when the petitioner has deposited Rs. 1,75,000/- before the Trial Court, this revision was admitted in the year 2012 granting bail to the petitioner but with a direction to furnish fresh bond. 5. The sum and substance of the complainant's case before the Trial Court is to the effect that petitioner-accused has taken an amount of Rs. 3,50,000/- from him because of friendship between them but failed to repay such amount o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences adduced before the Trial Court. The perusal of such evidence makes it clear that except putting some questions here and there, the accused could not rebut the evidence of the complainant which confirms that accused has issued the cheque in favour of the complainant for making the payment of the amount which is disclosed in such cheque and therefore, there is no irregularity or illegality when Trial Court has presumed about acceptance of cheque and debt in favour of the complainant and against the accused. If we peruse the available record, it becomes clear that cheque was issued by the accused and it has returned unpaid by banker of the accused for want of sufficient fund in his account. Therefore, unless and until, the complainant is unable to identify the handwriting in such cheque, it cannot be said that accused has not issued the cheque at all. In all such cases, one basic thing to be recalled is that before filing of a complaint, a statutory notice is must and therefore, in present case also, the complainant has issued statutory notice of 31st December, 2004 by RPAD which is served upon the petitioner as per endorsement on acknowledgment slip of RPAD which is produced on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment of the Act in the year 2002, the sentence has been increased from 1 year to 2 years. However, in all such cases, an attempt was always made to get favour of the extension of such clause which provides that for the purpose of such section, "debt or other liability" means "legally unenforceable debt or other liability". Therefore, there are several decisions where the phrase, "legally unenforceable debt" or again "other liability", has been differently considered and interpreted but it is settled law that when in wordings of section are having clear and simple meaning then it should not be stretched or restricted or altered or modified by the Courts. Otherwise also, the basic aim of the provisions of the Act is to see that commercial transactions are regularized by timely payment of debt. 13. Whereas the petitioner is relying upon other transactions by him and some other person including wife of the complainant but only because of some other transactions and decision, it cannot be said that petitioner has proved that there is no legally unenforceable debt or that complainant was not able to lend any money to him. What is material is the act of the accused in issuing Negotiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... John v. Tom Varghese & Anr. reported in AIR 2008 SC 278 wherein, the Supreme Court has held that while appreciating the evidence regarding rebuttal of presumption, Court can take notice of conduct of parties wherein, according to the petitioner because in similar situation like the present case, Supreme Court has observed that if complainant has failed in his previous suit to recover the other amount then it is to be presumed that he would not lend any further money to the accused and therefore, Supreme Court has confirmed the decision of the High Court that accused did not issue any cheque in discharge of any debt. However, if we peruse the judgment, it becomes clear that in reported case of the transactions were between the same parties and therefore, when complainant in case has to institute three civil suits against the accused, the Supreme Court has believed that after repeated litigations between the parties, there may not be any transaction between them. Whereas, in the present case, there is no prior litigation between the petitioner and respondent. Therefore, if there is some other litigation with some other parties by the petitioner, including wife of the respondent, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und by the complainant thereby, no relationship between the parties or any other similar defence, so as to believe that accused has never issued a cheque in favour of the complainant to clear any legal debt, which is never pleaded or proved by the petitioner. 18. In the present case, there is no issue regarding relationship between the parties. There is no issue or evidence regarding misuse of cheque or loss of cheque and therefore, because the complainant is silent on certain facts which otherwise are not material and relevant for the consideration of commission of offence under the Negotiable Instruments Act, it cannot be said that petitioner has succeeded in proving his innocence or that he has rebutted the evidence of the complainant so as to confirm the acquittal in his favour. 19. In view of the above facts and circumstances of the case, considering the settled legal position that otherwise revisional jurisdiction is limited which does not permit re-appreciation of the entire evidence when there are two concurrent findings of fact by two Courts below. Therefore, in view of the above facts and circumstances of the case and discussion, there is no substance in the revision ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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