Bombay High Court
Kamal S/O Chaturbhujji Mandhania vs Rajesh S/O Madhukarraoji Tote on 12 July, 2017
Bench: Z.A. Haq
1 apeal491.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.491/2008
Shri Kamal S/o Chaturbhujji Mandhania,
Proprietor M/s. Kisan Bandhu
aged about 40 years, Occu. Business,
R/o C/o M/s. Kisan Bandhu, Main
Road, Hinganghat, Distt. Wardha. ..Appellant.
..Vs..
Shri Rajesh S/o Madhukarraoji Tote,
Proprietor M/s. Rajesh Agro Traders,
aged about Major, Occu. Business,
Post Kangaon, Tah. Hinganghat,
Distt. Wardha
R/o Kolhe Layout, Srinivas Colony,
Ramnagar, Wardha, Tah. and Distt. Wardha. ..Respondent.
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Shri P.P. Kotwal, Advocate for the applicant / appellant.
Shri A.A. Chaube, Advocate for the non-applicant / respondent.
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CORAM : Z.A.HAQ, J.
DATE : 12.7.2017.
CRIMINAL APPLICATION NO.1701/2008
Heard.
Criminal Application No.1701/2008 filed by the complainant
seeking leave to file appeal to challenge the judgment passed by the learned
Magistrate by which the complaint filed by the complainant under Section 138
of the Negotiable Instruments Act, 1881 was dismissed and accused was
acquitted, was rejected by this Court by the order passed on 1 st April, 2009.
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The complainant had filed Criminal Appeal No.335/2011 before the Hon'ble
Supreme Court which came to be allowed by the order dated 20 th August,
2015. The Hon'ble Supreme Court, in terms, granted leave to the complainant
to file appeal inasmuch as by the above referred judgment it is directed that the
High Court should proceed with the hearing of the appeal.
CRIMINAL APPEAL NO.491/2008 : JUDGMET
1. Considering the facts of the case and as the learned Advocates for
the respective parties have shown willingness to argue the matter on merits,
the appeal is taken up for hearing.
2. The complainant has filed this appeal to challenge the judgment
passed by the learned Magistrate dismissing the complaint filed by him under
Section 138 of the Negotiable Instruments Act, 1881 and acquitting the
respondent / accused of the charge of offence punishable under Section 138 of
the Instruments Act, 1881.
3. The learned Magistrate has dismissed the complaint recording that
the complainant has failed to prove that the accused had issued the cheque to
fulfill legal liability. The learned Advocate for the appellant has submitted that
the conclusions of the learned Magistrate are contrary to the provisions of
Sections 118 and 139 of the Negotiable Instruments Act which create statutory
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presumption in favour of holder of cheque that the cheque is issued to
discharge legally enforceable debt / liability.
The learned Magistrate has recorded that the cheque (Exh. No.23)
was dishonoured with the remark "exceeds arrangement" meaning that the
cheque was for an amount beyond the deposit / limit as per the arrangement
between the drawer of cheque and the bank. The learned Magistrate has
recorded that the complainant had issued notice (Exh. No.27) as required by
Section 138 of the Negotiable Instruments Act and the notice was received by
the accused on 12th February, 2003. These findings are not challenged by the
accused.
4. The submission on behalf of the accused is that the cheque (Exh.
No.23) was issued on 30.12.1998, however, it came to be presented on
25.01.2003 after scoring the date 30.12.1998 and putting the date 30.12.2002
and in view of this fact the cheque could not be honoured as the cheque stood
lapsed after the period of 6 months from 30.12.1998. It is submitted that the
learned Magistrate has properly appreciated the evidence and it would not be
proper for this Court to re-appreciate the evidence and to come to a different
conclusion.
As recorded earlier, the cheque was dishonoured with the
endorsement "exceeds arrangement" and it was not dishonoured on the ground
that the cheque had become invalid after the period of 6 months from
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30.12.1998. The respondent / accused has not been able to point out from the
evidence on the record that the date 30.12.1998 was scored by the appellant
and date 30.12.2002 was written by him to validate the cheque. As the change
in date on the cheque is not disputed by the respondent / accused, the
Magistrate had not framed any point in this regards for adjudication. The
learned Magistrate has recorded that the notice (Exh. No.27) as required by
Section 138 of the Negotiable Instruments Act was issued by the appellant and
it was received by the accused on 12.2.2003 and the accused neither complied
with the notice nor gave any reply. It is unexplained by the respondent /
accused that why the notice (Exh. No.27) issued by the complainant was not
replied pointing out to the complainant that the claim made by him is false and
unacceptable to the accused.
5. In view of the above facts on record, the finding recorded by the
learned Magistrate that the cheque was dishonoured with remark "exceeds
arrangement" and the conclusion of the learned Magistrate that the notice as
required by Section 138 of the Negotiable Instruments Act is legally and validly
issued by the complainant and served on the accused and considering the
provisions of Sections 118 and 139 of the Negotiable Instruments Act, the only
possible conclusion is that the cheque was issued by the accused to discharge
the legal debt / liability. If at all the accused intended to raise dispute on this
point, it was open to him, however, he has not raised any dispute on this point
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consequently, the learned Magistrate has not framed point for adjudication
casting burden on the complainant to prove that the cheque was issued to
discharge legally enforceable debt / liability.
6. The learned Advocate for the respondent / accused referred to
paragraph No.18 of the impugned judgment and submitted that the evidence of
Shri Pathak (Bank Officer) shows that the signature on the cheque at the place
where date was changed, differs from the specimen signature of the accused.
In my view, the observations made by the learned Magistrate in this regards are
of no consequence as undisputedly, the cheque was not dishonoured on the
ground that the signatures differ or there is some scoring or overwritting on the
cheque.
7. In view of the above, it has to be held that the respondent / accused
is guilty of commission of offence punishable under Section 138 of the
Negotiable Instruments Act, 1881.
8. Hence, the following order:
(i) The impugned judgment is set aside.
(ii) The complaint filed by the appellant under Section 138 of the
Negotiable Instruments Act, 1881 is allowed.
(iii) The respondent / accused is held guilty of offence punishable under
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Section 138 of the Negotiable Instruments Act, 1881 and is directed to deposit
an amount of Rs.4,90,000/- (Rs. Four Lakhs Ninety Thousand) within two
months.
(iv) If the amount of Rs.4,90,000/- (Rs. Four Lakhs Ninety Thousand) is
not deposited by the respondent / accused within two months, the
respondent / accused shall undergo imprisonment for two years.
(v) If the amount of Rs.4,90,000/- (Rs. Four Lakhs Ninety Thousand) is
deposited by the accused within two months, an amount of Rs.4,80,000/- (Rs.
Four Lakhs Eighty Thousand) be paid to the appellant / complainant.
(vi) The appeal is allowed in the above terms with costs quantified at
Rs.50,000/- (Rs. Fifty Thousand) to be paid by the respondent / accused to the
appellant within two months.
JUDGE
Tambaskar.
