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CRL.Rev.P.205/2013 & Crl. M.A. Nos.3897/2013 & 4269/2013
SADIQ HUSSAIN .....Petitioner
Through: Mr. Randhir Jain, Mr. Dhananjai Jain and
Ms. Richika Jain, Advocates
Through: Nemo
JUDGMENT
1. Petitioner's conviction and sentence for the offence under Section 138 of The Negotiable Instruments Act, 1881 stand affirmed vide impugned order of 7th March, 2013.
2. Learned counsel for petitioner had assailed the impugned order on the following five grounds: - (i)MM grossly allowed the application under Section 311 Cr.P.C.
(ii) Ex. CW1/F is a document fabricated by respondent-complainant and the same has been smuggled on the judicial record at a later stage.
(iii) CW2-complainant has admitted that Ex.CW1/F was not prepared or signed by him and he has not produced the person who prepared the same. 2013:DHC:1775 Crl. Rev.P.205/2013 Page 2
(iv) Legal Notice Ex.CW1/C was not served to the petitioner. No proof of its service has been placed on record and it is own case of respondent that notice had been returned unserved.
(v) Cheque has been issued by National Sales Corporation and it cannot be attributed to petitioner.
3. It would be pertinent to note that petitioner has not disputed the signatures on the cheque in question and so, statutory presumption arises against petitioner. Whether petitioner has been able to rebut statutory presumption raised against him, is the moot question which is required to be considered. This Court is conscious that an accused is not required to lead evidence to rebut the statutory presumption if it could be shown or gathered from the material on record or the evidence of complainant that the statutory presumption stands rebutted.
4. Upon hearing petitioner's counsel and on perusal of the impugned order and the material on record, I find that afore-noted grounds on which impugned order is assailed have been adequately dealt by the appellate court in paragraphs No.3 to 8.
5. In the instant case, I find that reliance placed by petitioner's counsel upon the decision in Rajendraprasad Gangabishen Porwal v. Santoshkumar Parasmal Saklecha & Anr. 2008 CRL. L.J. 2995 is of no avail as petitioner has not been able to effectively rebut the statutory presumption raised against him and so finding no illegality or infirmity, petitioner's conviction and sentence are maintained.
6. After the hearing was concluded, petitioner had come up with an application bearing Crl.M.A. No.4269/2013 raising a general question by Crl. Rev.P.205/2013 Page 3 terming it to be a legal question. The so-called legal question raised is as under: - “Whether the trial of criminal offence is vitiated when the trial court proceeds on the basis of allegations (as evidence) which are not to be found in the evidence led by the complainant?” To say the least, the so-called aforesaid legal question, does not arise for consideration in this case. Even reliance placed upon decisions in K.Annaji Rao v. N.Krishna Raju Sekhar and Anr. 2004 Crl.L.J. 2911, Krishna Janardhan Bhat v. Dattatraya G.Hedge AIR 2008 SC 1325, Rangappal v. Mohan AIR 2010 SC 1898, Shrimathi v. Renuka 2010 Crl.L.J. 372, Rajendraprasad Gangabishen Porwal v. Santoshkumar Parasmal Saklecha & Anr. (supra) and Shri Vinay Parulekar v. Shri Pramod Meshram 2008 Crl.L.J.2405 is misplaced as petitioner has failed to rebut the statutory presumption raised against him. As such, this revision petition and the application are dismissed. (SUNIL GAUR) Judge APRIL 08, 2013 s