M/S Purtha Agro Finance And ... vs Meghraj Mulchand Dhanrajani
2017 Latest Caselaw 2731 Bom

 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.

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?"

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

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.

            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..