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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

dated 28.02.2012 as per which the appellant-accused agreed to

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

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

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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

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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.