Bombay High Court
Sudam Sampatrao Auti vs Rupchand Budhusing Dhage & Anr on 16 June, 2016
Bench: A.I.S. Cheema
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.615 OF 2003
Sudam s/o. Sampatrao Auti
Age-43 years, Occu:Business,
R/o- N-12, D-51/5, Hudco,
T.V. Center, Aurangabad.
...APPELLANT
(Orig. Complainant)
VERSUS
1) Rupchand s/o. Budhusingh Dhage,
Age-40 years, Occu. Business,
R/o- At post Railgaon, Tq-Sillod,
Dist-Aurangabad
2) The State of Maharashtra
...RESPONDENTS
(Resp. No. 1 - Orig. Accused)
...
Shri. N.K. Kakade, Advocate for Appellant.
Shri. Hemant F. Pawar, Advocate for
Respondent No.1.
Shri. K.D. Mundhe, A.P.P. for Respondent No.2.
...
CORAM: A.I.S. CHEEMA, J.
DATE OF RESERVING JUDGMENT : 8TH JUNE,2016.
DATE OF PRONOUNCING JUDGMENT: 16TH JUNE, 2016.
::: Uploaded on - 16/06/2016 ::: Downloaded on - 30/07/2016 05:37:40 :::
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JUDGMENT :
1. Appellant - Original Complainant has
filed this Appeal against dismissal of his
Complainant filed under Section 138 of Negotiable
Instruments Act, 1881 ("N.I. Act" in brief) and
the acquittal of Respondent No. 1 - Accused.
2.
The case of the Complainant as can be
seen from the Complainant filed in the trial Court
is as under : -
(A) Between Complainant and the Accused there
was a transaction regarding sale of Tempo MH-20-A-
5761. There was an agreement whereby the Accused
agreed to purchase the vehicle for Rs. 1,65,000/-
(Rupees One Lakh Sixty Five Thousand) from
Complainant. On the same day on 15th January, 1999
Accused paid cash of Rs. 35,000/- (Rupees Thirty
Five Thousand) and for the balance amount issued
following cheques:
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Sr.
Date Amount Cheque No.
No.
1 25-01-1999 Rs. 30,000/- 634676
2 02-02-1999 Rs. 65,000/- 634677
3 03-02-1999 Rs. 35,000/- 634678
(B) Complainant claimed that on 20th January,
1999 Accused came and gave cash of Rs.30,000/-
(Rupees Thirty Thousand) to the Complainant and
Complainant returned the cheque dated 25th
January, 1999. Before Complainant put the cheques
of February 1999 in the bank, Complainant
requested the Accused that his mother has expired
and cheques may be deposited in the month of
March. Accordingly, Complainant deposited the
remaining two cheques in his bank, Aurangabad
District Central Co-operative Bank, branch at T.V.
Center, Aurangabad, (hereafter referred as - Bank
of Complainant at Aurangabad) on 7th March 1999.
As the cheques issued by the Accused were from his
bank - Aurangabad-Jalna Gramin Bank, branch
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Ambhai, Tq. Sillod, (hereafter referred as - Bank
of Accused) the cheques came to be sent to that
branch. The branch at Ambhai dishonoured the
cheques and issued memo dated 31st March 1999. The
cheques along-with memo dated 31st March 1999 came
to the bank of the Complainant at Aurangabad on
22nd April 1999 and were received by the
Complainant. As the cheques were dishonoured, on
22nd April 1999 itself Complainant sent notice by
Registered Post. Notice was also sent Under
Certificate of Posting. The acknowledgement of
receipt of the Registered Post Notice came back to
the Complainant on 8th May 1999 which showed that
the Accused has received the notice. The Accused
did not pay within fifteen days of the receipt of
the notice, thus the Complaint was filed.
3. In the trial Court Complainant filed his
affidavit of evidence and was cross-examined. The
concerned documents were exhibited. The trial
Court considered the evidence which was brought on
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record and acquitted the Accused, mainly on the
ground that notice was not issued within fifteen
days of the dishonour of the cheques and thus the
notice was not legal and proper.
4. Aggrieved by the dismissal of the
Complaint and acquittal of the Accused, present
Appeal is filed.
5. It is claimed and it has been argued by
the learned counsel for the Appellant-Complainant
that the Complaint was filed within limitation and
the trial Court has wrongly interpreted the law.
The slips regarding dishonour of cheques were
received by the bank of the Complainant at
Aurangabad on 22nd April 1999 and the Complainant
came to know about the dishonour only on 22nd
April 1999 and evidence was led regarding this but
the trial Court wrongly interpreted the documents
and evidence, and wrongly acquitted the Accused.
The learned counsel for the Appellant submitted
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that the trial Court wrongly attributed knowledge
to the Appellant as of 31st March 1999 which was
the date on which the bank of Accused at Ambhai
dishonoured the cheques. The bank of Accused
issued the dishonour slip Exhibit 46 on 31st March
1999 which came to the bank at Aurangabad through
Branch of Aurangabad District Central Co-operative
Bank, branch Ambhai, which is clear from the memo
Exhibit 45. The documents naturally took time to
reach Aurangabad branch of the bank of the
Complainant and his evidence that he got the
information on 22nd April 1999 could not have been
ignored. The Complainant had sent notice
Exhibit 49 on the same day and it was mentioned in
the Complaint that the memo regarding dishonour of
cheques has been received at Aurangabad on 22nd
April 1999. Trial Court wrongly observed that the
notice was silent in this regard. According to the
learned counsel the approach of the trial Court
was wrong and the evidence brought by the
Complainant could not have been ignored.
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Ultimately the counsel submitted that if
necessary, the matter should be remanded so that
the Complainant can call the witness from the
branch of the bank of Complainant at Aurangabad to
bring on record the concerned documents.
6. Against this, the learned counsel for the
Accused submitted that the record itself shows
that the cheques were dishonoured on 31st March
1999. At the concerned time the provisions of
Section 138 of the N.I. Act required that the
notice should be sent within fifteen days of the
dishonour of the cheque. The counsel referred to
the cross-examination of the Complainant to state
that the Complainant in Cross-examination was
unable to tell the date on which the bank returned
the cheques to him. Thus, according to the
counsel, the trial Court has rightly found that
the notice was not valid and rightly dismissed the
Complaint. According to him, the record shows that
the vehicle had been transferred to the Accused by
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executing necessary documents required to be filed
before R.T.O. It is argued that the Accused had
taken defence that he had paid cash of
Rs.1,00,000/- (Rupees One Lakh) regarding the
amounts of the two cheques concerned but the
Complainant did not returned back those cheques
and has misused the same. It is claimed that as
the notice mentioned that the cheques were
dishonoured on 31st March 1999, the notice not
being within fifteen days of 31st March 1999, was
not valid.
7. In reply, the learned counsel for the
Complainant claimed that if the Accused took back
the first cheque dated 25th January 1999 when he
paid cash, it would not be likely that he would
pay the balance amount without taking back the
cheques and thus the defence had no substance. In
the cross-examination of Complainant he admitted
that R.T.O. forms were signed on 10th February
1999. Complaint was filed on 28th May 1999.
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Accused never claimed till then that he paid cash
Rupees One Lakh but cheques had not been returned
it is argued.
8. Section 138 of the N.I. Act provides
that, where any cheque drawn by a person on an
account maintained by him with a banker for
payment of any amount of money for discharge of
debt or other liability is returned by the bank
unpaid, for insufficiency of amount or if it
exceeds the amount arranged, the said person shall
be deemed to have committed an offence. In order
to constitute the offence, the Proviso requires
that the payee should make a demand for the
payment of the amount by giving a notice in
writing to the drawer of the cheque. At the
relevant time the said sub-clause (b) of Proviso
required the notice to be given within fifteen
days "of the receipt of information by the payee
from the bank regarding return of the cheque as
unpaid". It is clear that fifteen days are
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required to be seen from the date of information
from the bank to the payee. Keeping this in view,
when the present matter is considered, what
appears is that the trial Court got carried away
from the fact that memo Exhibit 46 was dated 31st
March 1999 and the notice Exhibit 49 was not
issued within fifteen days from the said date.
According to the trial Court, there was no
document that the Complainant received information
on 22nd April 1999 and that the notice sent by the
Complainant was silent about receiving back the
cheques by the Complainant and when he got the
knowledge about dishonour of the cheques.
9. I have gone through the notice Exhibit
49. The notice mentions that the Complainant had
deposited the cheques for collection in his bank
at the branch at Aurangabad and the same were sent
by the Registered Post for collection to the
branch of the bank of the Accused at Ambhai.
Notice mentions that the cheques were, however,
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dishonoured on 16th March 1999. It was mentioned
in the notice that Gramin Jalna Bank, branch
Ambhai sent the memos by Registered Post to the
Bank of Complainant and the memos were received on
22nd April 1999 and on same day the expenses of
collection had been debited from the account of
the Complainant.
10.
In the evidence vide affidavit Exhibit
40, the complainant claimed that when the cheques
were sent for collection, they were dishonoured by
the bank of the Accused on 31st March 1999 and the
memos came to the bank at Aurangabad on 22nd April
1999 and were received by the Complainant on 22nd
April 1999 itself and at that time the Complainant
came to know the cheques have been dishonoured and
on same day expenses regarding collection of the
cheques were debited in the account of the
Complainant. Thus, in the notice itself the
Complainant had, on 22nd April 1999, claimed that
the memos dishonouring the cheques were received
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by his bank on 22nd April 1999. Complainant gave
evidence that he came to know about the dishonour
of cheques on 22nd April 1999 itself. The
Complainant appears to have sent notice Exhibit 49
which was Registered on 23rd April 1999 vide
Exhibit 50 and received back the acknowledgement
Exhibit 51 signed by the Accused. The evidence of
the Complainant is that the acknowledgement came
back to him on 8th May 1999. There is no material
to show that the Accused raised any challenge to
the notice which was sent by the Complainant.
Although the complainant was cross-examined, no
defence evidence has been led. In the cross-
examination of complainant, he was put to memory
test when he was asked to state as to the date on
which the bank returned cheques to him.
Complainant stated that he does not remember the
date. In the further cross-examination, however,
the complainant denied that it was not true that
he was telling false that the cheques were
returned to him on 22nd April 1999. The
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complainant relied on the documents he received
from the Bank and the notice as well as his
affidavit to claim that he had received back the
memos dishonouring the cheques on 22nd April 1999.
It is matter of documents which are material and
which have been relied on by the complainant to
claim that the memos came back on 22nd April 1999
and accordingly he issued notice Exhibit 49. The
trial Court appears to have fallen in error for
not relying on the oral evidence led on oath by
the complainant.
11. Section 138 of the N.I. Act requires
giving of notice within fifteen days from the
receipt of information. Looking to the affidavit
of the complainant and the notice issued by him, I
find that the trial Court wrongly ignored the oral
evidence of the complainant. Complainant had
nothing to gain from delaying to send notice. He
could have resubmitted the cheques for collection
in validity period and gained fresh period. As
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such I find no reason to doubt his oral evidence
read with documents.
12. The learned counsel for the complainant
rightly submitted that the defence has no
substance that the accused paid cash of
Rs.1,00,000/- (Rupees One Lakh) and the two
cheques were not returned and misused by the
complainant. There is substance in the argument
that if the first cheque was returned by the
complainant when cash was paid, he would not have
retained the other two cheques. It is unlikely
that accused would pay cash and still not take
back two cheques if on earlier occasion he had
paid cash and taken back the first cheque.
13. I find substance in the submissions made
by learned counsel for Complainant. For reasons
discussed above, I find that the Judgment as
recorded by the trial Court is not maintainable
and the evidence of the complainant was required
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to be accepted. The offence under Section 138 of
the N.I. Act must be said to be proved against the
Respondent - accused.
14. At the time of arguments, I have heard
learned counsel for both sides regarding
punishment, in case the Appeal was to be allowed.
The counsel for the Accused - Respondent No.1
submitted that matter is quite old and instead of
passing any sentence of imprisonment, the Court
may direct the amount of cheques to be paid.
Against this, the learned counsel for the
complainant - Appellant submitted that the
complainant was required to be compensated as per
bank rate of interest.
15. Keeping in view the provisions as found
in Section 138 of the N.I. Act, it would be
appropriate not to pass sentence of imprisonment
after such long period and it would be in the
interest of justice that fine to the extent of
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twice the amount of cheques should be imposed.
16. For the above reasons, I pass the
following order:-
O R D E R
(I) The Appeal is allowed with costs
quantified at Rs.20,000/- (Rupees Twenty
Thousand) to be paid by Accused -
Respondent No.1 to Appellant - Complainant.
(II) The impugned Judgment passed by the
Chief Judicial Magistrate, Aurangabad on
5th August 2003, dismissing the complaint
and acquitting the accused, is quashed and
set aside.
(III) Instead, it is directed that the
Accused - Respondent No.1 is hereby found
guilty of offence punishable under Section
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138 of the Negotiable Instruments Act, 1881
and is sentenced to fine of Rs.2,00,000/-
(Rupees Two Lakh).
(IV) In default of fine, the Accused -
Respondent No.1 shall undergo rigorous
imprisonment for six months.
(V) Fine if paid, shall be made over to
the complainant - Appellant as
compensation.
(VI) The Accused - Respondent No.1 shall
surrender to his Bail Bonds.
[A.I.S. CHEEMA, J.]
asb/JUN16
