High Court · 2025

Legal Reasoning

(1) cri.apeal-560.02 & cri.rev. 307.09.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 560 OF 2002Nandlal Vasuram DhananiAge : 31 yrs, occ : businessR/o Near Laxmi Mata Mandir,Deolgaon Raja Road, JalnaAppellantVersus1.Shrichand Vasuram DhananiAge : 47 yrs, occ : tradeR/o Nath Nagar, SRPF Group III, Mantha Road, JalnaC/o Hasmukh Provision, SindhiBazar, Jalna.2.State of MaharashtraRespondentsWITHCRIMINAL REVISION APPLICATION NO. 307 OF 2009Nandlal Vasuram DhananiAge : 415yrs, occ : businessR/o Near Laxmi Mata Mandir,Deolgaon Raja Road, JalnaAppellantVersus1.State of Maharashtra 2.Shrichand Vasuram DhananiAge : 58 yrs, occ : businessR/o Nath Nagar, SRPF Group III, Mantha Road, JalnaC/o Hasmukh Provision, SindhiBazar, Jalna.Respondents…Mr. Rahul Joshi, Advocate for appellant/applicant Nandlal.Mr. R.D. Raut, A.P.P. for State.Mr. V.R. Dhorde, Advocate for respondent Shrichand.... (2) cri.apeal-560.02 & cri.rev. 307.09.odtCORAM :SANDIPKUMAR C. MORE, J.JUDGMENT RESERVED ON:18 FEBRUARY 2025JUDGMENT PRONOUNCED ON:21 APRIL 2025JUDGMENT :1.Both these proceedings are filed by one and thesame applicant/appellant Nandlal Vasuram Dhanani againsthis real brother respondent Shrichand Vasuram Dhanani. Toavoid ambiguity the parties are referred to their first names.The appellant/applicant Nandlal has filed Criminal AppealNo.560 of 2002 for assailing the judgment and order dated22.02.2002 passed by the learned 3rd Jt. Judicial Magistrate,First Class, Jalna (hereinafter referred to as “the learned trialCourt”) in STC No. 2127/1996 whereby the respondentShrichand has been acquitted of the offence punishable underSection 138 of the Negotiable Instruments Act (for short, “N.I.Act”). The applicant Nandlal has filed Criminal RevisionApplication No. 307 of 2009 for challenging the judgment andorder dated 07.11.2009 in Criminal Appeal No.6 of 2002 passedby the learned Additional Sessions Judge-2, Jalna i.e. thelearned appellate Court, whereby the judgment and orderdated 22.02.2002 passed by the learned trial Court in R.C.C.No.359/1996 has been confirmed under which the applicantNandlal is convicted for the offences punishable under (3) cri.apeal-560.02 & cri.rev. 307.09.odtSections 465, 467, 468 and 471 of the Indian Penal Code(“I.P.C.” for short). Admittedly, the applicant Nandlal has beenconvicted by the learned trial Court and sentenced to suffer sixmonths’ simple imprisonment for the offence under Section465, rigorous imprisonment for six months and fine of Rs.1000/- for the offence under Section 467 of I.P.C. Similarpunishment for the offence under Section 468 of I.P.C. and sixmonths’ simple imprisonment for the offence under Section471 of I.P.C. It is to be noted that the learned trial Court haspassed common judgment in both the cases namely R.C.C. No.359/1996 and STC No. 2127/1996.2.The background facts are as under :R.C.C. No. 359/1996 was filed by respondentShrichand against the applicant/appellant Nandlal allegingthat he had in fact given the disputed cheque bearingNo.783718 dated 23.07.1996 drawn on United Western BankLimited, Branch Jalna to Nandlal for paying electricity bill ofRs.945/-, but Nandlal, instead of paying the said electricitybill, misused the said cheque to show that he was supposed toget an amount of Rs. 12,70,500/- mentioned in the chequetowards remaining amount of consideration which wasallegedly agreed between himself and Shrichand for waiving (4) cri.apeal-560.02 & cri.rev. 307.09.odtright in the family business and a shop thereof. WhenShrichand became aware of the said fact that Nandlal wasintending to misuse the cheque, he immediately informed thebank to stop the payment of cheque. Therefore he filed theaforesaid criminal case against Nandlal for the offencespunishable under Sections 467, 468, 466, 471 of I.P.C.3.On the other hand, Nandlal had filed STC No.2127/1996 against Shrichand for the offence punishable underSection 138 of N.I. Act since the aforesaid cheque in disputewas dishonoured. In his case, Nandlal alleged that Shrichandhad filed Special Civil Suit No. 57 of 1993 against Nandlal andothers in respect of rendition of accounts of Raj KiranaMerchant. There was compromise between them in the saidsuit on 29.06.1996. It was agreed in the said suit thatShrichand and his mother Vindurabai were to continue withthe business of aforesaid grocery shop and Nandlal was toexecute registered sale deed in respect of his share in CTSNo.693. Nandlal had also agreed to hand over premises of theshop to Shrichand alongwith furniture and fixtures. It iscontended by Nandlal that in view of the aforesaid settlement,Shrichand had agreed to pay a sum of Rs. 13,00,000/-(Rupees Thirteen Lakh) to Nandlal for waiving Nandlal’s entire (5) cri.apeal-560.02 & cri.rev. 307.09.odtright. In pursuance to this settlement, Shrichand then paidan amount of Rs. 29,500/- to Nandlal on 02.07.1996 and onthe very day Shrichand had handed over the disputed chequeto Nandlal. Nandlal has come with a case that on 24.07.1996he presented the disputed cheque in his bank i.e. the Bank ofIndia, but the same was dishonoured with a reason thatpayment was stopped by drawer. According to Nandlal, therewere no sufficient funds in the bank account of Shrichand,and therefore, cheque was dishonoured on 24.07.1996.Thereafter Nandlal issued statutory notice on 01.08.1996which was received by Shrichand on 05.08.1996. However,despite paying the cheque amount Shrichand gave false andevasive reply on 11.08.1996. As such, Nandlal was constrainedto file STC No. 2127/1996.4.Learned trial Court, after conducting the trial,disposed of both the cases under common judgment which isimpugned in the appeal. The trial Court though dismissedSTC No. 2127/1996 filed by Nandlal, but convicted Nandlal inthe case filed by Shrichand for the offences punishable underSections 465, 467, 468 and 471 of I.P.C. Hence, Nandlal hasfiled this appeal as well as Criminal Revision as mentionedabove. (6) cri.apeal-560.02 & cri.rev. 307.09.odt5.Learned Counsel for the appellant/applicantNandlal vehemently submitted that the learned trial Court atfirst has definitely erred in disposing of the two separate casesunder separate Acts by a common judgment. According tohim, learned trial Court has also erred in making theobservation that the disputed cheque was not in fact issued byShrichand in view of the compromise took place between themin the aforesaid Special Civil Suit. According to him, theobservation that Nandlal was working in Raj Kirana, is notproper. He pointed out that handing over a blank cheque byShrichand to Nandlal was not in dispute, and therefore, thelearned trial court should have presumed that the said chequewas given by Shrichand to Nandlal in view of the settlementonly. He further submitted that there was no evidenceshowing that Nandlal was employee of Shrichand, andtherefore, the question for giving the disputed cheque forpayment of electricity bill, would not have arisen. He pointedout that there must be different charges for different offence,and therefore, the act of passing common judgment in twoseparate cases for different charges, is definitely erroneous onthe part of the learned trial Court. In support of hissubmission, he relied on the following judgments : (7) cri.apeal-560.02 & cri.rev. 307.09.odt(i)Rohitbhai Jivanlal Patel vs Stateo f Gujrao & anrAIR 2009 Supreme Court 1876(ii)T.P. Murugan vs Bojan and Posa Nandhi(2018) 8 Supreme Court Cases 469(iii)Rangappa Vs Sri Mohan(2010) Sup[reme Court Cases 441(iv)K.N. Beena vs Muniyappan and another(2001) 8 Supreme Court Cases 458(v)Nasib Singh vs State of Punjab and another(2022) 2 Supreme Court Cases 89(vi)State of Karnataka vs Hosakeri Nangappa and anotherILR 2012 KAR 509(vii)Nathi Lal & ors vs State of U.P. and another1990 Supreme Court Cases 1456.On the contrary, learned Counsel for therespondent Shrichand strongly opposed the submissions madeon behalf of appellant Nandlal. According to him, Nandlal hasmisused the disputed cheque and came with concocted story.He pointed out the admission on the part of Nandlal whereby itwas accepted that he had in fact written the cheque. As such,in view of the said admission there was no necessity for anyexpert’s evidence. In short, he supported both the impugnedjudgments and prayed for dismissal of the appeal as well asCriminal Revision Application. He also relied on the judgmentof Apex Court in the case of K. Prakashan vs P.K. Surenderanreported in 2008 (2) Mh.L.J. 771. (8) cri.apeal-560.02 & cri.rev. 307.09.odt7.Heard rival submissions. Also perused theimpugned judgments and the record and proceedings.8.Learned Counsel for the appellant/applicantNandlal raised initial objection that there should be separatetrial for distinct offences and there are certain exceptions tothis rule and only if a person falls under this exception, jointtrial for the offences is to be conducted. For that purpose, herelied on the judgment in the case of Nasib Singh vs State ofPunjab (supra). However, the aforesaid judgment is not at allapplicable in the instant case since in the present matter, thelearned trial Court has conducted two separate trials for twodistinct offences. It is to be noted that only the subject matteri.e. the disputed cheque is common. Further, the learnedCounsel of Nandlal relied on the judgments in the cases ofState of Karnataka vs Hosakeri Ningappa (supra) and NathilLal vs State of U.P. (supra), wherein certain observations aremade as to how the counter cases are to be tried. Further, inthe case of Nathi Lal (supra), emphasis laid on the point thateach case is to be decided on the basis of evidence placed onrecord in that parcicular case only without being influenced byevidence or arguments urged in cross case. However, thelearned appellate Court has clearly observed in this matter (9) cri.apeal-560.02 & cri.rev. 307.09.odtthat for convicting the appellant Nandlal for the offence offorgery, no evidence of other case falling under Section 138 ofN.I. Act has been used.9.Here in this matter there are no cross complaints,but it can be said that both these cases are based on samesubject matter i.e. the disputed cheque. According to therespondent Shrichand, he had handed over blank chequesigned by him to Nandlal for paying electricity bill, whereasNandlal is claiming that disputed cheque was issued byShrichand in view of compromise between themselves in thecivil suit. Therefore, it appears that the learned trial Courthave decided both these cases under a common judgment byholding the trial separately, as it was related to same subjectmatter i.e. the disputed cheque. There is no such bar in law todecide both the cases by common judgment when it is basedon same subject matter. Under such circumstances, theaforesaid cases relied upon by the learned Counsel for theappellant Nandlal, are not applicable in the instant case.10.On going through the record of both the cases, it isclearly evident that there are two different versions of Nandlaland Shrichand in respect of the disputed cheque. According toShrichand, he had given the disputed cheque to Nandlal for (10) cri.apeal-560.02 & cri.rev. 307.09.odtpaying electricity bill of Rs. 945/-. It was his specificcontention that he gave the said cheque only by signing it,leaving other columns empty. He claimed that Nandlal had infact misused the said cheque and pretended by filling up thesame, that it was issued for payment of Rs. 12,70,500/-arising out of settlement between the parties in the civil suit.On the contrary, Nandlal has come with a case in hiscomplaint under Section 138 of N.I. Act that there wassettlement between himself and Shrichand in respect of jointbusiness and in the civil suit arising out of that, a compromisehad taken place between himself and Shrichand and in view ofthat compromise Shrichand had agreed to pay him an amountof Rs. 13,00,000/-, and therefore, the disputed cheque for theaforesaid amount was issued. However, on going throughevidence on record, it clearly indicates that Shrichand deposedas per the story in his case of forgery and after noticing thefact that the amount of Rs. 945/- was not debited from theaccount on account of issuance of disputed cheque i.e. on22.07.1996, he immediately on the next day made enquiry withM.S.E.B. and came to know that electric bill was paid in cash.Therefore, suspecting foul play on the part of Nandlal, hestopped the payment of disputed cheque and thereafter gotinformation that cheque for Rs. 12,70,500/- was received for (11) cri.apeal-560.02 & cri.rev. 307.09.odtencashment on his account, but due to stop payment made byhim, it could not be honoured. Further, it has come on recordthat he immediately after getting knowledge of foul play ofNandlal, registered Crime No. 210 of 1996 under Sections 465,466, 467, 468, 471 of I.P.C. against Nandlal.11.Further, in the evidence of the said case of forgery,Shrichand has brought on record important documentary andoral evidence according to which, it has been established thathe had issued blank cheque to Nandlal for depositing theamount of electricity bill of Rs. 945/-, but Nandlal misused thesame and filled the cheque in his handwriting and pretendedthat it was issued for the amount of Rs. 12,70,500/-. It issignificant to note that the Handwriting Expert’s report is alsoon record at Exh.20. It is extremely important to note that theappellant Nandlal had in fact did not raise any objection forexhibiting the said report (Exh.20), and therefore, now hecannot make complaint that the same was wrong. The saidreport has established that the disputed cheque was onlysigned by Shrichand, but the body of the cheque was filled inthe handwriting of Nandlal. Further, it is important to notethat Nandlal is claiming that under the compromise in SpecialCivil Suit No. 57 of 1993, Shrichand had agreed to pay a sum (12) cri.apeal-560.02 & cri.rev. 307.09.odtof Rs. 13,00,000/- to him towards goodwill of shop and goodsstock in the shop of Shrichand. It is to be noted that certifiedcopy of the terms of compromise in the civil suit is producedon record at Exh.32 in the case of forgery and on goingthrough the same nothing is there to show that it was agreedbetween the parties that Shrichand was going to pay Rs.13,00,000/- to Nandlal for goodwill of shop and for goods stockin the shop.12.Thus, it is clearly established that no suchagreement was there at the time of compromise. Further, thewitness Govardhan Dhakre examined by Shrichand in the caseof forgery has also produced on record two counter foils atExhs.35 and 36 respectively, out of them counter foil at Exh.36is having all the signficance. The said counter foil definitelyindicates that the disputed cheque was in fact issued in blankcondition for payment of Rs. 945/- towards electricity bill.13.Therefore, considering all this evidence in form ofdocumentary as well as oral, respondent Shrichand has in factestablished his case beyond all reasonable doubts that it wasappellant Nandlal who had in fact misused the disputedcheque and committed forgery. The learned trial Court as wellas the learned appellate Court, by discussing the evidence in (13) cri.apeal-560.02 & cri.rev. 307.09.odtthe case of forgery, have concurrently observed guilt ofappellant Nandlal and that too on the basis of evidence.14.Further, it appears from the evidence in the casefiled by appellant Nandlal under Section 138 of N.I. Act thatNandlal could not adduce any trustworthy and reliableevidence that the disputed cheque had in fact issued byShrichand for discharge of any legal liability. Therefore, whenthe respondent Shrichand in his case had established beyondall reasonable doubt that Nandlal had misused the disputedcheque, then there was no occasion for him to rebut thepresumption by entering into witness box separately in thecase filed by Nandlal under Section 138 of N.I. Act. Therefore,the judgments relied on by the learned Counsel for theappellant Nandlal in the cases of Rohitbhai vs State of Gujrat,T.P. Murugan vs Bojan and Rangappa vs Sri Mohan (supra)observing that there is presumption that when the cheque isissued, then it is to be presumed that it was issued fordischarging legal liability, are not applicable to this case.Specically such presumption is rebuttable and in the instantmatter the respondent Shrichand has definitely rebutted thesame. Under such circumstances, there is no need to interferewith both the impugned judgments and accordingly the (14) cri.apeal-560.02 & cri.rev. 307.09.odtcriminal appeal and criminal revision application standdismised. (SANDIPKUMAR C. MORE, J.)15.After pronouncement of judgment, the learnedCounsel for the appellant/applicant submits that the appellantis at present on death-bed suffering from lungs cancer offourth stage. In view of the same, three months’ time tosurrender the appellant before the concerned authority, isgranted. (SANDIPKUMAR C. MORE, J.)VD_Dhirde