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TMI Blog2016 (12) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... assed the impugned order/ judgment. Thereafter the revisionist aggrieved from the impugned order dated 22.12.2015 passed by the learned ASJ preferred the instant revision petitions. 2. The brief facts stated are that the respondent no.2- M/s Sood & Sood Builders Pvt. Ltd. had filed a complaint under Section 138 of the Negotiable Instrument Act, 1881(hereinafter referred to as NI Act) through its Director Mr. A.P. Sood against Mr. Deepak Aggarwal, the present revisionist, who was the Director of M/s Avenue Holding Pvt. Ltd. It is alleged in the complaint that both Mr. A.P. Sood and the revisionist were known to each other and in the month of June, 2010 the revisionist herein requested the respondent for a short term financial assistance for a sum of Rs. 51,00,000/- (Rupees Fifty One Lakhs Only) subject to return with interest at the rate of 36% p.a. to meet uncalled exigency. On the request of the revisionist, the respondent gave Rs. 51 lakhs to the revisionist vide cheque no. 299237, dated 14.06.2010, drawn on HSBC Bank. Against the said payment the revisionist herein executed a promissory note for a sum of Rs. 51 lakhs in favour of the respondent. 3. It is further alleged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Subsequently, the revisionist filed two revision petitions, i.e. Crl.Rev.P. 853/2015 and Crl.Rev.P. 302/2016, qua against the single common order passed by the learned Additional Sessions Judge dated 22.12.2015. Hence the present revision petitions. 7. The learned counsel for the revisionist has submitted that the Court below did not appreciate the evidence on record properly, i.e., the onus to prove the liability always lies on the respondent no.2/ complainant, whereas the respondent No.2/complainant failed to discharge this onus. The learned counsel for the revisionist has further submitted that the respondent No.2/complainant has admitted during the cross-examination that the amount of Rs. 51 lakhs paid by the revisionist was in the same transaction for which the share purchase agreement was executed however the same was subject to due diligence being observed by the revisionist. 8. The learned counsel for the revisionist has further submitted that even if, the factum of execution of promissory notes is accepted as it is, the same goes in view of the Article 22 of the Share Purchase Agreement which is later in point of time and the same supersedes any prior understanding be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revisionist has admitted his liability in the instant case, therefore nothing remains to be adjudicated upon and the statement ipso facto is sufficient to dispel the false plea taken by the revisionist. 14. The learned counsel for the respondent further submits that once the revisionist admits the liability in his statement under Section 313 of Cr.P.C., then it is for the revisionist to explain as to what were the circumstances under which the said amount was taken from the respondent No.2/complainant. 15. The learned counsel for the respondent no.2/complainant has further pointed out that the revisionist in response to the question no.4 in the statement under Section 313 of Cr.P.C. also admits the correctness of the documents. He further submits that on an oral demand made on behalf of the respondent no.2/complainant, the revisionist issued two cheques in the sum of Rs. 70 lakhs and Rs. 20 lakhs totalling to Rs. 90 lakhs and the said cheques were returned unpaid, therefore, the respondent No.2/complainant issued demand notice to the revisionist demanding the aforesaid amount and the aforesaid facts have been admitted by the revisionist. So, the material evidence available on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bringing into his notice about the dishonouring of the said cheques and to make payment of the aforesaid two cheques amount. 23. The revisionist examined himself as DW1, wherein he has admitted receiving of Rs. 51 lakhs by cheque and Rs. 19 lakhs through RTGS from respondent/complainant during his cross-examination, which is reproduced hereunder: "...It is correct that we have received Rs. 51 lac by cheque and against Rs. 19 lac to RTGS from the complainant..." (underlining supplied) 24. The revisionist/DW1 further admits in his cross-examination, the issuance of two cheques amounting to Rs. 70 lakhs and Rs. 20 lakhs in lieu of discharging the liability, which is reproduced hereunder: "...Q1. Have you issued in discharged of aforesaid liability of Rs. 70 lacs two cheques amounting to Rs. 70 lacs and 20 lacs towards interest in aforesaid amount 15.05.2011? Ans. I had issued the aforesaid cheques for securing the payment of the complainant which was invested through my company approximately 1 year after the 1st amount was received I am confused about the year been 2011or 2012..." (underlining supplied) 25. The revisionist/DW1 further admits receiving of legal demand notice, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Magistrate dated 04.09.2015 is upheld and does not require any interference. 32. So far as the enhancement of sentence awarded by the learned Additional Session Judge, i.e. rigorous imprisonment for three months to rigorous imprisonment for one year, is concerned the learned appellate Court has rightly appreciated the facts on record as the revisionist at the initial stage has admitted its liability and despite admitting the liability the revisionist kept on taking undue benefit of the legal process and harassed the respondent/complainant and backed out many times during the court proceedings too as per the order sheet of the learned Metropolitan Magistrate dated 29.03.2012 and 15.05.2012. The judgment relied by the revisionist in the case Col. S. S. Chaudhary (supra) is not applicable in the present facts and circumstances of the case. Therefore, nothing special circumstance arise in the instant case to interfere with the order passed by the learned Additional Sessions Judge dated 22.12.2015. 33. Consequently, the order on conviction dated 04.09.2015 passed by the learned Metropolitan Magistrate and the subsequent order of enhancement of sentence passed by the learned Additio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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