Raj Kumar Bhati and Others vs Sher Singh Saini

Shiv Narayan Dhingra, J.—This criminal revision petition u/s 397/401 Code of Criminal Procedure has been preferred by the Petitioners against an order dated 22nd February, 2010 passed by learned first appellate court dismissing the appeal of the Petitioners against conviction handed out to them in a case u/s 138 of Negotiable Instruments Act.

The Petitioners number 1 and 2 are the directors of a private limited company (Petitioner No. 3 here in). The facts reveal that Petitioner No. 3 had taken a loan of Rs. 5 lac under a written agreement from the complainant and issued post-dated cheques for repayment of the loan and also issued cheques on account of interest. The cheques issued by the Petitioners for repayment of loan got dishonored when they were put by the complainant to the bank. The complainant served a notice on the Petitioners and the Petitioners replied that they have paid back the loan. The complainant who had not received the loan amount nor payment against dishonored cheques filed a complaint u/s 138 of Negotiable Instruments Act. The dishonor of the cheques was not denied by the Petitioners. The plea taken by the Petitioners was that the loan was paid in cash in 2004. However, in order to prove this defense, no evidence was adduced except oral statement of the accused. The balance sheet of the company for the year 2003-04 admittedly showed the loan paid by the complainant as debit and the liability of the company. The plea taken by the accused that the loan was paid in cash without obtaining receipt was rightly disbelieved by the trial court and the trial court convicted the Petitioners. In appeal, the appellate court also came to same conclusion after re-appreciating the entire evidence that the Petitioners were guilty of offence u/s 138 of NI Act and were rightly convicted since the defense taken by the Petitioners was a farce. In the present petition, the Petitioners have assailed the order of the learned trial court as well as first appellate court on merits alleging that the judgment passed by the appellate court and the trial court was based on surmises and conjectures and it suffered from many infirmities. The stand taken is that the cheques were issued as security. It is submitted by the counsel for the Petitioners that the agreement under which the loan was taken provided that the Petitioners had a right to recover the loan from the assets of the Petitioners. Therefore, the cheques were given only as a security.

It is settled law that in a revision, this Court has not to act as a court of second appeal and depreciate the entire evidence. In the revision, this Court can interfere only if the Court below had exceeded its jurisdiction or acted without jurisdiction or beyond jurisdiction or illegality committed by the trial court was such that it resulted into a judgment contrary to law. None of these grounds are made out by the Petitioners. The two courts below had scrutinized all the documents and considered the evidence and rightly came to conclusion that the cheques were issued against liability and were dishonored. The two courts below thus rightly came to conclusion that the plea taken by the Petitioners that the amount was paid in cash without obtaining a receipt was a false and baseless plea. I find no merits in this revision petition. The petition is hereby dismissed. The Petitioners/ accused persons be arrested forthwith and lodged in jail to undergo the sentence as awarded by the trial court.