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TMI Blog2018 (6) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant to obtain his services and instructed him to enter into certain transactions on his behalf. The complainant duly complied with the instructions of the accused and on account of the same, a sum of Rs. 5,43,474/was due as on 12th February 1996 along with interest thereon. Towards part payment and in discharge of liability, the applicant-accused issued three cheques drawn on Bank of Maharashtra. Cheque No.46300 dated 13th February 1996 for Rs. 1 lakh, cheque no.046299 dated 8th February 1996 for Rs. 1.40 lakh and cheque no.046298 dated 7th February 1996 for Rs. 1.45 lakh, were issued in favour of the complainant by the applicant accused. All the three cheques in question were dishonoured by the bankers of the applicant accused, when presented for encashment in the month of February1996. The accused confirmed in writing the said dues as per statement of account in that behalf and further confirmed to pay a sum of Rs. 5,43,474/with interest thereon @ 2.5% per month and further stated that the said cheques be presented again for encashment with undertaking to honour the same. The complainant deposited the said cheques in his bank on 3rd July 1996. However, the said cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stead of payment of fine of Rs. 10,000/, the applicant-accused was directed to pay compensation to the complainant within ten days. During pendency of the appeal, the substantive sentence imposed by the Trial Court was suspended. 6. The applicant thereafter preferred this revision application. By order dated 10th December 2001, this revision application was admitted and the applicant was released on bail of Rs. 5,000/with one surety in the like amount. During pendency of the appeal, the applicant preferred Criminal Application No.477 of 2017 seeking directions for bringing additional material on record in the nature of report of Securities and Exchange Board of India (`SEBI') at ExhibitX by amending the revision application accordingly. The revision application was dismissed for default since the advocate for the applicant was not present on 2nd July 2012. The applicant preferred Criminal Application No.350 of 2012 for restoration of the revision application. By order dated 14th January 2013, the revision application was restored to file subject to deposit of Rs. 3.85 lakh by the applicant in this Court. The notice of hearing of the revision application was served by the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refers to the settlement no.40 and indicate the carry forward of the transaction from settlement no.39 to settlement no.40 with the same counter party, the same scrip, the same quantity at the price difference from the contracted price, which included interest payment also. It is, therefore, contended that the transactions in Exhibit22 made with Pune Stock Exchange were illegal in terms of subSection (2) of Section 16 of Securities Contracts Regulation Act, 1956 and are not enforceable by law. When the shares were bought and sold on delivery basis, physical delivery of the share certificates was given along with share transfer form to facilitate the transfer of ownership from the seller to the borrower. On the carry forward transactions there is no delivery of share certificates along with share transfer form as there is no intention to transfer ownership of the security. It is submitted that the complainant had agreed in the cross examination that when he received the shares, he issued receipts for them. Exhibit45 is one such receipt issued by the complainant. The complainant had also agreed with regards to Exhibit22 that he did not issue delivery slips. The transactions at Exhib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he relevant information i.e. the report of SEBI was received by the applicant on 5th March 2010 from SEBI under Right to Information Report, 2005. It is submitted that there were genuine attempts by the applicant to obtain the relevant documents in support of his grounds from the beginning and hence, in exercise of powers u/s 391 of Cr.P.C, the applicant-accused be permitted to bring additional material on record. 10. I have perused the evidence on record and the findings of the Trial Court and the Appellate Court. There are concurrent findings of both Courts below convicting the applicant-accused for the offence u/s 138 of Negotiable Instruments Act, 1881. I could not find any reason to deviate from the findings of both the Courts below resulting in conviction of the applicant. The Trial Court has taken into account all the aspects. The defence raised by the applicant-accused has been dealt with by assigning reasons. The judgment of the Trial Court also indicate that the Court has scrutinized and appreciated the evidence on record and after giving opportunity to the defence, has held that the applicant-accused is liable to be convicted for the said offence. The Appellate Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular liability is in existence. 12. In accordance with Section 138 of Negotiable Instruments Act, it shall be presumed unless contrary is proved, that the holder of the cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge in whole or in part of any debt or other liability. In the present case, the complainant has proved that the cheques were issued by the applicant-accused. The said presumption is not rebutted by the applicant-accused in any manner. The applicant-accused had admitted issuance of cheques and that there were outstanding due from him to the complainant in February1996. He also admitted that the cheques in question produced by the complainant are the cheques issued by him to pay for the amount due and payable to the complainant by him. Thus, the cheques were issued by the applicant-accused towards payment of amounts due and payable by him to the complainant. The complainant's case is that the transactions were bona fide. He produced the extract of account of the applicant, Exhibit22. The applicant-accused admitted that he had signed the said extract of account but denied the written contents of Exhibit22. There is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the cheques in question were treated to be cancelled. It is apparent that the applicant-accused has admitted issuance of cheques. It is also borne by record that the amounts were due. The applicant-accused has also adopted duel defence which is contradictory to each other, that the transactions were forward trading transactions and banned by the stock exchange and also that the cheques stood cancelled in view of agreement wherein the liability was admitted but allegedly certain outstanding was incorporated in the agreement. It may be noted that the accused has admitted during the cross-examination that Exhibit49 does not bear the signature of the complainant and there is no reference about the place of executing the said document and that the attesting witnesses have signed the said document in the presence of of complainant. He also admitted that by notice dated 23rd August 1996 the complainant had called upon the applicant-accused and informed him that he has not produced the copy of the agreement and that he has not mentioned in the correspondence with complainant that the alleged transactions are Badla transactions. The Trial Court, therefore, has observed that the agreeme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RTI. In the application, however, it is submitted that the report of SEBI was received by him on 5th March 2010. However, he has preferred the said application on 4th September 2017 before this Court. Section 391 of Cr.P.C empowers the Appellate Court to take further evidence or direct it to be taken while dealing with any appeal, if the Appellate Court thinks it fit that additional evidence is necessary and by recording tis reasons may take such evidence itself or direct it to be taken by Magistrate. On perusal of the application preferred by the applicant-accused it can be seen that the prayer is to bring additional material on record in the nature of report of SEBI annexed at ExhibitX. The application is bogus. It does not mention as to which witnesses the applicant-accused intends to examine to bring the said documents on record. In any case, there is no substance in the application as in the light of the observations of the Trial Court and the Appellate Court, the defence of the applicant that the cheques were issued in respect of Badla transactions has been rejected by assigning proper reasons. The Trial Court has observed that the complainant has proved that the cheques were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the applicant-accused shall pay the compensation in the said amount to the complainant. These proceedings are pending between the parties since 1996. During pendency of the revision application, the applicant was directed to deposit Rs. 3.85 lakh which is subject matter of the cheques in question. Learned counsel for applicant-accused submitted that liberal view may be adopted while imposing sentence by showing leniency. It is submitted that the applicant-accused has deposited Rs. 3.85 lakh in this Court. He has also deposited Rs. 10,000/towards fine amount imposed by the Trial Court. Taking into consideration all the aspects and also looking into the fact that it is proved that the cheques were issued to the tune of Rs. 3.85 lakh by the applicant-accused in favour of complainant in the year 1996, the sentence can be modified. 18. Hence, I pass following order : OEDER (i) The impugned judgment and order dated 15th April 1998 passed by the learned Judicial Magistrate, First Class, Cantonment Court, Pune in Criminal Case No.2197 of 1996 convicting the applicant for the offence u/s 138 of Negotiable Instruments Act, 1881, as well as the judgment and order dated 6th November 2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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