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IN THE HIGH COURT OF BOMBAY
Vijay Shivpad Erandole
Versus
Ashwini Sharad Kavadi
Decided on : JUNE 30, 2005
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Conviction - Existing debt liability - Sale of flats by power of attorney holder - No evidence of legal liability - Cheque for amount more than liability not to support liability - Amount when more liability does not raise any legal liability - Revision dismissed. - The trial Court has considered this aspect and has passed a detailed order and has given cogent reasons for coming to the conclusion that the said cheque was issued towards the existing debt and liability. The trial Court has observed that the fact that the flats were sold by the accused has not been denied. The trial Court has further observed that if at all the said cheque had been given towards the loan, the accused would have obtained an acknowledgment in writing from the complainant and there was no reason or occasion to obtain this acknowledgment from her husband. The trial Court, therefore, disbelieved the theory of loan being given to the complainant. The trial Court further relied on the written statement which is filed by the accused in the civil suit which was filed by her for the recovery of the other cheque of Rs. 3 lakhs. The trial Court has observed that though the sale deed for the sale price of the flat is shown as Rs. 2,15,000/-, by itself was not sufficient to come to the conclusion that the cheque of Rs. 3 lakhs was not towards the said amount which was due and payable by the accused to the complainant. At this stage, it must be noted that the flats were sold and the cheque was issued almost after a lapse of two years. The trial Court thereafter came to the conclusion that the accused had not rebutted the presumption which was raised under Section 139 of the Negotiable Instruments Act. The trial Court has further observed that in the reply to the legal notice which was given by the accused a reference was made by the accused regarding the request of loan by the husband of the complainant. However, in the said reply there is no reference of the condition of giving the gold ornaments as security deposit. The trial Court has therefore observed that there is a major discrepancy creating a doubt about the case of the accused. The lower Appellate Court also has considered this aspect and has given cogent reasons for not relying on the defence raised by the accused and has, after giving cogent reason, confirmed the finding recorded by the trial Court. Since concurrent finding has been given by both the lower Courts. No reason why the said finding should be substituted even if a different view can be taken on the basis of the evidence which is brought on record. Even otherwise the trial Court has given a very reasoned order and the Appellate Court also has independently appreciated the evidence on record.
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Discharge of burden - Conviction - Appeal - After perusing documentary contention that documentary evidence was already submitted - Reply shows major discrepancy creating doubt - Conclusion that accused did not rebut presumption under Section 139, N.I. Act. - The trial Court has observed that the fact that the flats were sold by the accused has not been denied. The trial Court has further observed that if at all said cheque had been given towards the loan, the accused would have obtained an acknowledgment in writing from the complainant and there was no reason or occasion to obtain this acknowledgment from her husband. The trial Court, therefore, disbelieved the theory of loan being given to the complainant. The trial Court further relied on the written statement which is filed by the accused in the civil suit which was filed by her for the recovery of the other cheque of Rs. 3 lakhs. The trial Court has observed that though the sale deed for the sale price of the flat is shown as Rs. 2,15,000/-, by itself was not sufficient to come to the conclusion that the cheques of Rs. 3 lakhs was not towards the said amount which was due and payable by the accused to the complainant. At this stage, it must be noted that the flats were sold and the cheque was issued almost after a lapse of two years. The trial Court thereafter came to the conclusion that the accused had not rebutted the presumption which was raised under Section 139 of the Negotiable Instrument Act. The trial Court has further observed that in the reply to the legal notice which was given by the accused a reference was made by the accused regarding the request of loan by the husband of the complainant.
Evidence Act, 1872 - Section 3 - Documentary evidence - Bouncing of cheque - Contention - Both Courts below did not consider cogent evidence - Held - Appellate Court considered aspect, given proper reasons, confirmed finding and decided - No reason to interfere in findings. - The trial Court has observed that the fact that the flats were sold by the accused has not been denied. The trial Court has further observed that if at all said cheque had been given towards the loan, the accused would have obtained an acknowledgement in writing from the complainant and there was no reason or occasion to obtain this acknowledgment from her husband. The trial Court, therefore, disbelieved the theory of loan being given to the complainant.
The lower appellate Court also has considered this aspect and has given cogent reasons for not relying on the defence raised by the accused and has, after giving cogent reason, confirmed the finding recorded by the trial Court. Since concurrent finding has been given by both the lower Courts. Not see any reason why the said finding should be substituted even if a different view can be taken on the basis of the evidence which is brought on record. Even otherwise the trial Court has given a very reasoned order and the appellate Court also has independently appreciated the evidence on record.
V. M. KANADE, J.
( 1 ) THE petitioner is the original accused and the respondent No. 1 is the original complainant in Criminal Case no. 541/n/97/d. The said complaint was filed by the respondent No. 1 under section 138 of the Negotiable Instruments Act. It was alleged in the complaint that the complainant and her father-in-law had given power of attorney to the petitioner herein to sell two flats for an amount of Rs. 3,00,000/- each and after the said transactions was completed the respondent No. 1 issued two cheques of Rs. 3,00,000/- each. These cheques were deposited by the complainant in her Bank. However, both the cheques were dishonoured and the therefore a criminal complaint was filed under section 148 of the Negotiable Instruments Act. The learned Magistrate convicted the accused and sentenced him to punishment until the rising of the Court and further directed him to pay compensation of rs. 3,00,000/- to the complainant and in default to undergo simple imprisonment for three months. Against the said judgment and order, an appeal was preferred by the petitioner before the District and Sessions court, Margao bearing Criminal Appeal No. 02/04. The District and Sessions Judge dismissed the appeal by Judgment and Order dated 19-8-04. Being aggrieved by the said judgment and order, the petitioner has preferred this Criminal Revision Application.
( 2 ) IT was submitted by the learned Counsel appearing on behalf of the petitioner that both the lower Courts had erred in overlooking the fact that the debt or liability against the petitioner was illegal and/or further not legally enforceable as other liability as contemplated under section 138 of the Negotiable Instruments Act, 1881. It was submitted that though this plea was raised, both the lower Courts had not given any finding how the debt alleged against the petitioner was legally enforceable debt or other liability. It was further submitted by the learned Counsel appearing on behalf of the petitioner that the consideration for the sale of two flats as per the sale deed dated 29-11-1995 was Rs. 2,15,000/- which had been brought on record by the petitioner and therefore the amount of Rs. 3,00,000/- could not be presumed to be the sale price of any of the flats in question. The learned Counsel appearing on behalf of the petitioner further submitted that both the lower Courts had not taken into consideration Exh. 70 which was a letter signed by the husband of the complainant in which it was specifically mentioned that the said cheques were given subject to the condition of deposit of the gold ornaments to the petitioner as security. He therefore submitted that the respondent not having deposited the gold ornaments with the petitioner as security section 138 of the Negotiable instruments Act, will not be attracted in the facts and circumstances of the case and that the Court had no jurisdiction to entertain the complaint. It was further submitted that both the lower Courts had wrongly discarded document dated 3-10-97 at Exh. 70 and the undated document signed by the husband of the complainant. He submitted that both these documents clearly showed that the husband of the complainant had admitted that no amount was due and payable to the complainant for the sale of the flats at Sangli and that the said transaction was complete. He submitted that both the lower Courts have discarded this document on conjectures and surmises. He submitted that both the Courts ought to have shown that the burden that was cast on the accused by virtue of section 139 of the Negotiable Instruments Act had been duly discharged by the accused on the basis of the said two documents and on production of the sale Deed. He submitted that therefore the initial burden having been rebutted by the accused, it was the duty of the complainant to prove her case beyond reasonable doubt. He submitted that the complainant had miserably failed in establishing beyond reasonable doubt that the said amount of Rs. 3
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