BHIKHABHAI PRAGJIBHAI PARAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Heard ld. Counsel Mr. SM Sojitwala for ld. Counsel Mr. BT Rao for the petitioner, ld. APP Mr. Pujari for respondent No.1and ld. Counsel Ms. Varsha Brahmbhatt for respondent No.2 .

(2.) By filing the present Cri. Rev. Application, the petitioner -accused has assailed the legality and validity of the judgment and order of conviction dated 04.05.2004 recorded by ld. 3rd Jt. JMFC, Kalol in Criminal Case No. 2639/ 1995 and confirmed by the ld. Addl. Sessions Judge, 7th Fast Track Court, Mehsana vide judgment and order dated 20.12.2004 while disposing Criminal Appeal No. 31/2004 and Cri. Rev. Application No.97/2004( common judgment in both the proceedings), on various grounds as mentioned in the memo of the Cri. Rev. Application. The ld. Addl. Sessions Judge was dealing with the criminal appeal filed by the present petitioner as well as criminal revision application filed by the original complainant against the impugned order of ld. JMFC and pending the said proceedings, the substantive sentence imposed by the ld. JMFC was placed under suspension, but after hearing the parties, the ld. Addl. Sessions Judge dismissed the appeal and allowed criminal revision application and ordered the petitioner to pay compensation in exercise of powers vested in the Court under section 357 of CrPC and in view of the scheme of NI Act, of Rs. 88640/ i.e. the amount equal to the amount of cheque.

(3.) Undisputedly, there are business transactions and certain material was purchased from the complainant and the petitioner had not paid the amount as per the say of the complainant. In view of the Scheme of Sec.138 of NI Act and in light of the oral evidence led by the complainant, version placed by the accused that the cheque could not have been given in the year 1995 because there were no transactions between the parties after 1991, is not believed. All the relevant aspects have been discussed at length by both the Courts below and it is found that the cheque was given in response to the genuine commercial transaction and the same was against the debt and legal liability. The judgment is based on positive findings based on material on record and there is no element of either perversity or illegality. It would be difficult for the Court to say that the ld. Trial Judge has failed in considering the documentary evidence produced and the findings are misdirected. The same is the case with the ld. Addl. Sessions Judge. This is a case of two concurrent findings of fact and when it does not emerge from record that these findings are manifestly erroneous, the revisional court should not disturb those findings as per settled legal position.