Rahul Sudhakar Anantwar vs Shivkumar Kanhiyalal Shrivastav

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 1598 OF 2019 (Arising out of SLP(CRL.)No.10408 of 2018)

RAHUL SUDHAKAR ANANTWAR Appellant(s)

VERSUS

SHIVKUMAR KANHIYALAL SHRIVASTAV Respondent(s)

J U D G M E N T

R. BANUMATHI, J.:

Leave granted.

(2) This appeal arises out of judgment and order 05.09.2018 in

Criminal Appeal NO.140 of 2017 passed by the High Court of

Judicature at Bombay, Nagpur Bench, in and by which the High

Court has reversed the acquittal of the appellant under Section

138 of the Negotiable Instruments Act, 1881 and convicted him

under Section 138 of the said Act and imposed a fine of

Rs.5,00,000/- (Rupees Five Lakhs) and also costs of Rs.20,000/-

(Rupees Twenty Thousand) total Rs.5,20,000/- (Rupees Five Lakhs

Twenty Thousand)

(3) Brief facts while led to filing of this appeal by way of

special leave petition is as under. The appellant-accused and

the respondent-complainant entered into an Agreement of Sale Signature Not Verified Digitally signed by MAHABIR SINGH dated 28.02.2012 as per which the appellant-accused agreed to Date: 2019.10.25 16:34:52 IST Reason:

sell the property, registered owner of which is the mother of

the appellant, in favour of the respondent-complainant. The 2

parties have agreed that the sale consideration of the said

property would be Rs.25,00,000/- (Rupees Twenty Five Lakhs) and

the respondent-complainant has paid an advance of Rs.2,50,000/-

(Rupees Two Lakhs Fifty Thousand) under the said Agreement

dated 28.02.2012. Due to certain circumstances, the Agreement,

as agreed by the parties, could not be fructified. The

appellant-accused had issued a cheque from the account of a

firm named Synergy and Solution Incorporation of Rs.2,50,000/-

(Rupees Two Lakhs Fifty Thousand) in order to refund the

earnest money to the respondent-complainant. When the said

cheque was presented for clearance by the respondent-

complainant the same was returned with the endorsement “Account

Closed”. After issuing the legal Notice dated 23.08.2013, the

respondent-complainant filed a complaint against the appellant

under Section 138 of the N.I. Act.

(4) Upon consideration of evidence, the Trial Court acquitted

the appellant-accused on the ground that the cheque was issued

from the account of a firm, namely, Synergy and Solution

Incorporation and the said account was in the name of one Vipin

Dhopte and not in the name of the appellant-accused. The Trial

Court also pointed out that the said account was closed due to

the negative balance on 11.03.2006. The Trial Court acquitted

the appellant-accused by observing that the complainant has

failed to prove the guilt of the accused under Section 138 of

the N.I. Act beyond reasonable doubt and that the appellant has

nothing to do with the cheque issued on the account of the firm

named Synergy and Solution Incorporation.

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(5) Challenging the order of acquittal of the Trial Court, the

respondent-complainant has filed an appeal before the High

Court. The High Court has pointed that the appellant has not

disputed his signature on the said cheque presented for

clearance and that there is nothing on record to show that the

said Firm by name Synergy and Solution Incorporation was a firm

or a company and that the account was maintained by one Vipin

Dhopte. The High Court has also held that it is not the case

of the appellant-accused that other entries in said cheque is

not in his own handwriting. The High Court has held that the

Trial Court has not appreciated the evidence in the right

perspective and in the light of the provisions of Section 139

of the N.I. Act which create statutory presumption in favour of

the holder of cheque and the burden is on the accused to rebut

the statutory presumption. Observing that there is sufficient

evidence on record to show that the said cheque was issued to

discharge “legally enforceable debt”, the High Court has

reversed the acquittal of the appellant-accused and convicted

him under Section 138 of the N.I. Act and imposed fine amount

of Rs.5,00,000/- (Rupees Five Lakhs) and also imposed costs of

Rs.20,000/- (Rupees Twenty Thousand) on the appellant.

(6) We have heard Mr. G.L. Bajaj, learned counsel appearing

for the appellant-accused and Mr. Sudheer Voditel, learned

counsel appearing for the respondent-complainant and also

perused the impugned judgment and the evidence/materials on

record.

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(7) Admittedly, the parties had entered into an Agreement of

Sale dated 28.02.2012. It is also an admitted fact that the

respondent-complainant had paid Rs.2,50,000/- (Rupees Two Lakhs

Fifty Thousand) as an advance/earnest money to the appellant-

accused as per the terms of the Agreement. As pointed out by

the High Court, the appellant-accused has not disputed his

signature on the said cheque presented for clearance.

Contention of the appellant that the cheque issued in the name

of the Firm, named, Synergy and Solution Incorporation was

removed from his office table is not convincing nor the same is

supported by any evidence. As pointed by the High Court in the

statutory presumption under Section 139 of N.I. Act, the

appellant-accused has not satisfactorily rebutted the statutory

presumption. In view of the above, we do not find any ground

warranting interference with the conviction of the appellant-

accused under Section 138 of N.I. Act.

(8) Insofar as the amount directed to be deposited, the High

Court has directed the appellant to deposit Rs.5,00,000/-

(Rupees Five Lakhs) and also costs of Rs.20,000/- (Rupees

Twenty Thousand) whereas the cheque amount is only

Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand). Though

Section 138 of the N.I. Act enable the court to impose the

higher amount than the cheque amount, however, considering the

facts and circumstances of the case we are of the view that the

amount of Rs.5,00,000/- (Rupees Five Lakhs) ordered to be

deposited is on the higher side and the same has to be reduced

to Rs.2,80,000/- (Rupees Two Lakhs Eighty Thousand) plus costs 5

of Rs.20,000/- (Rupees Twenty Thousand). Ordered accordingly.

Mr. Sudheer Voditel, learned counsel appearing for the

respondent-complainant, has submitted that the respondent-

complainant has already received Rs.2,50,000/- plus Rs.20,000/-

(towards costs). An amount of Rs.30,000/- (Rupees Thirty

Thousand) be disbursed to the respondent-complainant and the

balance amount of Rs.2,20,000/- (Rupees Two Lakhs Twenty

Thousand) be returned to the appellant-accused along with the

accrued interest, if any.

(9) The appeal is accordingly disposed of.

..........................J. (R. BANUMATHI)

..........................J. (HRISHIKESH ROY)

NEW DELHI, OCTOBER 21, 2019.