Judgment 1 apeal78.06.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 78 OF 2006
M/s. Prutha Agro Finance and
Investment (India) Ltd., Nagpur
having its Registered office at Bhute
Bhavan, Near Panchpaoli Police Station,
Nagpur, through its Power of Attorney
Holder Mr. Anand Nathuji Rakshit,
aged 40 years, presently working as
Field Development Officer, resident of
Nagpur.
.... APPELLANT.
// VERSUS //
Meghraj S/o. Mulchand Dhanrajani,
Aged about 35 years, Occupation :
Business, R/o. 642, Ahuja Nagar,
Nara Road, Nagpur.
.... RESPONDENT
.
___________________________________________________________________
Shri Sandeep Marathe, Advocate for Appellant.
None for the respondent.
___________________________________________________________________
CORAM : Z.A.HAQ, J.
DATED : JUNE 05, 2017.
ORAL JUDGMENT :
1. None appeared for the respondent at the first call. The matter was kept back. At the second call also none appears for the respondent. Heard Shri Sandeep Marathe, advocate for the appellant/ original complainant.
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Judgment 2 apeal78.06.odt
2. The appellant/ complainant has challenged the judgment passed by the learned Magistrate dismissing the complaint filed by it under Section 138 of the Negotiable Instruments Act, 1881.
3. According to the complainant, the accused had taken loan of Rs.25,000/- from the complainant, had repaid some amount, however, stopped the repayment and as the amount of Rs.25,280/- was outstanding on 6th March, 2002, the accused had given cheque for that amount. According to the complainant, the cheque was deposited on 6 th March, 2002 itself but was not honoured and was returned by the bank with endorsement that funds in the account of the accused were insufficient. After receiving the cheque along with the memo of the bank on 9 th March, 2002 the complainant issued notice on 23rd March, 2002 calling upon the accused to pay the amount, however, the accused failed to comply with the request made in the notice and therefore, the complaint under Section 138 of the Negotiable Instruments Act, 1881 came to be filed.
4. The learned Magistrate conducted trial. Point No.1 which was framed for consideration reads as follows :
"1.Does the complainant prove beyond reasonable doubt that on 06.03.02 the accused issued cheque of Rs.25,280/- for discharging whole or part of the legally enforceable debt or liability?"::: Uploaded on - 13/06/2017 ::: Downloaded on - 28/08/2017 05:01:17 :::
Judgment 3 apeal78.06.odt The learned Magistrate recorded that the complainant has failed to discharge the burden of proving that the cheque was given by the accused for discharging legally enforceable debt or liability and in view of these findings dismissed the complaint.
5. With the assistance of the learned advocate for the appellant, I have gone through the record. I find that the learned Magistrate has committed an apparent error by wrongly placing burden on the complainant to prove that the cheque was given by the accused to discharge legally enforceable debt or liability. The learned advocate for the appellant has rightly relied on the provisions of Section 118 and Section 139 of the Negotiable Instruments Act to argue that in law there is presumption that the holder of cheque received the cheque for discharge of any debt or any liability and if the accused pleads otherwise, the burden is on the accused.
6. I have gone through the evidence of Meghraj-accused. The accused has not led any evidence to show and prove that the cheque was not given by him to the complainant to discharge legal debt or liability. In normal course it would have been appropriate for this Court to set aside the impugned judgment and remit the matter to the Magistrate, however, as the complaint is of 2002 and this appeal is pending since 2006, I have gone through the evidence of the accused with the assistance of the learned advocate for the appellant to examine whether the accused has discharged at ::: Uploaded on - 13/06/2017 ::: Downloaded on - 28/08/2017 05:01:17 ::: Judgment 4 apeal78.06.odt least preliminary burden to show that the cheque was not given to discharge legally enforceable debt or liability. As the accused has not led any evidence on this point, in my view, it would not be of any useful purpose to remit the matter to the learned Magistrate again.
7. I find that the impugned judgment is unsustainable. Hence, the following order :
i) The impugned judgment is set aside.
ii) The complaint filed by the complainant is allowed.
Iii) The respondent-accused is held guilty of committing offence
punishable under Section 138 of the Negotiable Instruments Act, 1881.
iv) The respondent-accused is directed to deposit fine of Rs.50,560/-. This amount shall be deposited by the respondent/ accused till 15th July, 2017. On deposit of the amount, Rs.50,000/- shall be given to the complainant.
v) If the respondent-accused fails to deposit the amount of fine of Rs.50,560/- till 15th July, 2017, he shall undergo simple imprisonment for six months.
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Judgment 5 apeal78.06.odt
vi) The respondent shall pay costs of Rs.Twenty Thousand to the
appellant. This amount shall be paid till 15th July, 2017. The appellant shall inform the respondent about this judgment by sending intimation by Speed-Post A.D. immediately. The appeal is allowed in the above terms.
JUDGE RRaut..
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