TaxTMI 
TaxTMI 
2022 (3) TMI 1052
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....ons Judge, Shrirampur, District Ahmednagar, whereby conviction of the accused recorded by the learned Judicial Magistrate First Class (JMFC) has been maintained but substantive sentence is modified. 2. In this order parties are referred to as per their original status in the trial Court. 3. Facts in brief are that on the request of the accused - Aris @ Arish Mohammad Shaikh, complainant - Abhaykumar Bansilal Mutha paid Rs. 2,50,000/- to accused as a hand-loan on 28th December 2004. Accused assured that he would repay the amount within two days. Accused gave post-dated cheque dated 31st December 2004 to the complainant. On 31st December 2004, complainant deposited the cheque in the Bank which was dishonoured on account of insufficie....
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....de the substantive sentence on the ground that sentence awarded was simple imprisonment. This order was passed by the learned Additional Sessions Judge on 13 December, 2017. This order is impugned in this revision. 7. Criminal Revision Application No.13 of 2018 is preferred by the complainant. Accused has preferred Criminal Revision Application No.177 of 2021 challenging the order of learned Additional Sessions Judge maintaining conviction. Since both these revisions arise out of the same order of the learned Additional Sessions Judge, they are being disposed of by this common order. 8. Heard Smt.Rashmi S.Kulkarni, learned counsel for the complainant and Shri Avinash Barhate Patil, learned counsel for the accused. 9. Smt.Kulkarni, learne....
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....cused issued cheque of Superb Battery Plates. He further submitted that income tax returns were not produced to show that this amount was lent to the accused by the complainant as a hand-loan. He submitted that there was no legally enforceable debt. Therefore, accused has been erroneously convicted by the learned JMFC and conviction has been erroneously confirmed by the learned Additional Sessions Judge. He submitted that in the facts and circumstances of the case, the learned Additional Sessions Judge was perfectly justified in setting aside the substantive sentence. 11. I have given thoughtful consideration to the submissions of both the learned counsel. 12. Both the Courts have held that accused did not dispute drawing of the cheque an....
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....egally enforceable debt. In the case at hand, except alleging that there was alteration in the date, nothing has been brought on record to show that there was no legally enforceable debt. Report of the Handwriting Export was received indicating therein that there was alteration. The learned Additional Sessions Judge has observed that the Handwriting Expert was not examined. Therefore, no importance can be attached to this report of Handwriting Expert. The learned trial Court has observed that the only defence taken by the accused during the cross-examination of the complainant is that the cheque was issued on 1st February 2004 and date was altered by the complainant to 31st December 2004. Thus, in the cross-examination also, accused could n....
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....ily, he is handicapped etc., some leniency is required to be shown to the extent of imprisonment and hence, to that extent only interference is necessary by way of modification in the operative part of the impugned Judgment which meets the ends of justice. The learned Advocate Shri Kothari for complainant has opposed for the same." 18. From these observations, it cannot be said that the learned Additional Sessions Judge has given cogent reasons. No documentary proof was placed on record to show that accused is a handicapped person. His age shown to be 55 years. Thus, at the time of deciding the appeal, he was not even Senior Citizen. Therefore, the leniency shown by the learned Additional Sessions Judge was wholly unwarranted. 19. ....
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.... if the accused paid the amount at least during the pendency of the case.B 20. This Court further observed in paragraph No.7 thus :- "7. What should have been the minimum sentence is the matter which needs to be resolved with reference to objects and reasons for enacting penal provisions in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque vide Negotiable Instrument laws (Amendment Act), 1988. This has become imperative for the reason that the Courts awarding the sentence for the offence under section 138 are required to award sentences of such nature as to give proper effect to the object of the legislation as observed in Suganthi Suresh Kumars case. Adverting to the objects and reason....