Jijamata Mahila Nagari Sahakari ... vs Ishwarsingh Namdeo Patil
2017 Latest Caselaw 6738 Bom

 apeal616.04.J.odt                         1



          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    NAGPUR BENCH, NAGPUR

                     CRIMINAL APPEAL NO.616 OF 2004

          Jijamata Mahila Nagari 
          Sahakari Limited, Buldhana
          Branch, Mahavir Bhawan Complex,
          Buldhana Road, Malkapur,
          Through Branch Manager,
          Bhagwansingh Ramsingh Rajput.   ....... APPELLANT

                                   ...V E R S U S...

          Ishwarsingh Namdeo Patil
          Gopalkrushna Nagar, Buldhana Road,
          Malkapur, District Buldhana.                       ....... RESPONDENT
 -------------------------------------------------------------------------------------------
          Shri Gopal G. Mishra, Advocate holding for Mrs. I.L.
          Bodade, Advocate for Appellant.
          Shri Sumit Joshi, Advocate holding for Shri A.S. Mardikar,
          Senior Counsel for Respondent.
 -------------------------------------------------------------------------------------------

          CORAM:            ROHIT B. DEO, J. 

          DATE:               th
                            4    SEPTEMBER, 2017.


 ORAL JUDGMENT



 1]               The appellant is challenging the judgment of acquittal

in S.C.C. 208/2003 dated 20.07.2004 delivered by the learned

Judicial Magistrate First Class, Malkapur acquitting the accused of

offence punishable under section 138 read with 142 of the

Negotiable Instruments Act, 1881.

2] Heard Shri Gopal Mishra, the learned counsel for the

appellant-complainant and Shri Sumit Joshi, the learned counsel

for the respondent-accused.

3] The learned counsel for the appellant would urge that

the judgment of the learned Magistrate is manifestly erroneous

and certain observations and conclusions dangerously border on

perversity.

4] The learned counsel for the appellant invites my

attention to the observations of the learned Magistrate in

paragraphs 13, 14, 15, 16 and 17 of the judgment impugned.

The observations do make an interesting reading and I reproduce

verbatim paragraphs 13, 14, 15, 16 and 17:

13. The liability as imposed by section 138 of the Act, is a strict liability. It is a cardinal principle of the Criminal Law that there must be mens rea as the gist of any offence. However, the state is empowered to enact any statute by imposing any strict liability for any act. Therefore, whenever any strict liability is imposed by the statute, more care and caution is required, while interpreting the said statute. Article 21 of the Constitution of the India provides :

"No person shall be deprived of his life or personal liberty except according to procedure established by law."

Article 21 of the Constitution is enumerated or placed in Part-III of the Constitution of India, which deals with

fundamental rights. Therefore, liberty of any person is a fundamental right, which is ensured by Article 21 of the Constitution. Personal liberty of any person can be curtailed or interfered with by the State according to procedure established by the law. However, again, the procedure established by law must stand to the scrutiny of the Article 14 of the Constitution, which speaks of equality. Therefore, any statute enacted by the Legislature must be just and reasonable, in order to stand to the scrutiny of the Article 14 of the Constitution. Virus of Section 138 of the Act was challenged before the Hon'ble Apex Court and a position is settled by the Hon'ble Apex Court that the provisions of Section 138 of the Act, are not ultra virus to the provisions of the Constitution.

14. For interpreting the provisions of Section 138 of the Act,, regard shall be had to the objects of the Act sought to be achieved by the Legislature, as are summarised by the Hon'ble Apex Court, and the Hon'ble Bombay High Court in the cases of M/s. Dalmia Cement Limited and Narayandas Ltd. (supra). As observed by the Hon'ble Bombay High Court, in the case of Satishkumar Premchand Jain Vs. Krishnagopal Mohanlal Sarda, 1993 Mh.L.J. 1282, a civil suit is for enforcing a civil liability, whereas, prosecution is for punishment for criminal offences under Section 138 of the Act.

15. Whenever any loan is raised from any banking institution, or any society, or a hand-loan, there is certainly a civil liability to repay the said loan amount. In such cases, if any cheque is issued for the repayment of the said amount, the same cannot amount to issuance of the cheque in the discharge of any debt or other liability so as to attract the provisions of Section 138 of the Act. The object sought to be achieved by the Legislature is to facilitate the trade and commerce activities so as to increase the acceptability of cheques. In the cases of loans, of whatever kinds may be, the sky is not going to collapse, if such cheques are not issued for the repayment of any loan amount. Nothing prevents the debtor from depositing the amount of loan or making the payment thereof "directly in cash" in-

stead of issuing any such cheque for the repayment of the loan amount. If the debtor issues any cheque for the repayment of any loan amount willfully, there should not be any reason for the dishonour of the same, if he really wanted to make the repayment of the loan amount.

16. The liability as imposed by Section 138 of the Act is a strick liability, as against the general principle of Criminal Law, that there should be mens rea. Therefore, while interpreting the said provision, the guarantee as given by the Article 21 of the Constitution in respect of the personal liberty of the ctiizen as well as the objects sought to be achieved by the Act, will have to be taken into consideration together. The punishment which is prescribed for the offence punishable under Section 138 of the Act, is an imprisonment which extend upto 2 years. Therefore, much more caution is desirable which interpreting Section 138 of the Act in order to see that no innocent person shall be punished, and the same shall not be used as a measure to enforce any civil liability.

17. For the purpose of illustration, let us take simple example. Suppose a person goes for purchasing any article in the market and purchases the same, and issues a cheque as a payment thereof. If the said cheque is dishonoured, it would amount to playing of a fraud against the shopkeeper, who would already have delivered the goods purchased. Therefore, in order to protect such persons accepting the cheques in lieu of money, the provisions of Section 138 have been introduced in the Act. However, whenever any loan is advanced by any bank or society or when any hand- loan is advanced by any person, and any cheque is issued for the repayment of the said amount, there is absolutely a civil liability. In such a case, the cheque cannot be said to have been issued towards the discharge of any legally enforceable debt or other liability, as dealt with under section 138 of the Act, keeping in view the objections sought to be achieved by the said Act. Therefore, I am of a considered view that the provisions of Section 138 of the Act, are not at all attracted, whenever any cheque is issued or drawn for

the repayment of any loan amount to any bank or society or "in case of repayment of any hand-loan". Hence, I answer point No.2 in the negative.

5] The attempt and endeavour of the learned Magistrate

to interpret the scope and ambit of section 138 of the Negotiable

Instruments Act on the touchstone of Article 21 of the

Constitution of India was, in the first instance, absolutely

unnecessary. The law, even then, was not res integra and stood

settled by the constitutional courts. The learned Magistrate ought

to have followed and applied the law declared by the

constitutional court rather than unnecessarily attempting to

interpret the statutory provisions on the anvil and touchstone of

right to liberty under Article 21 of the constitution. More over, the

entire exercise done by the learned Magistrate has led the learned

Magistrate to record observations, which are absolutely untenable

and contrary to settled legal position. The conclusion of the

learned Magistrate that section 138 has no role to play when

cheques are issued towards payment of loans extended by

financial institution, is a conclusion which is inexplicable and

defies logic and the juristic principle underlying the statutory

enactment. Be that as it may, although the conclusions reached by

the learned Magistrate are flawed, to put it very mildly, I am not

inclined to hold that against the accused.

6] One Bhagwansingh Rajput, who was then the Branch

Manager of the appellant, is examined as P.W.1. It would be

apposite to reproduce the relevant portion of the testimony of

P.W.1 which read thus:

Total amount of Rs.6,00,000/- i.e. Rs.4,50,000/- and Rs.1,50,000/- was advanced as a loan. It would be correct to say that if interest is calculated on the said loan amount of Rs.6 lacs from the dates of issuance of said loan, till 21.1.2003, the total amount does not come to Rs.22 lacs.

7] In the teeth of such admission, I do not perceive any

infirmity in the acquittal of the accused. The accused has more

than probablized the defence that a blank cheque was issued as

security and the amount of Rs.22 lacs which is filled in does not

correspond with the liability towards the two loan accounts i.e.

loan account 4 and loan account 16.

8] The learned counsel for the appellant attempts to

persuade me to hold that other than these two loan accounts the

accused availed of an overdraft facility and if the amount due

towards said facility is considered, then Rs.22 lacs which is the

amount filled in the cheque represents and corresponds to the

existing debt of the accused. I am not impressed by the said

submission. Neither the statutory notice nor the complaint makes

any mention about the overdraft facility. Indeed, P.W.1 admits

that the reference to the overdraft facility is made for the first time

in the Court. In the teeth of the admission given by P.W.1, there is

absolutely no merit in the contention of the appellant that the

acquittal is manifestly erroneous.

9] The reasoning is indeed manifestly erroneous to the

extent the statutory provisions are interpreted wrongly, but then,

there is absolutely no infirmity in the conclusion that the accused

deserves to be acquitted.

10] The view taken by the learned Magistrate is a possible

view and is certainly not perverse and I am not inclined to

interfere in the judgment of acquittal.

  11]              The appeal is dismissed.

   

                                                       JUDGE



NSN