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IN THE HIGH COURT OF JUDICATURE AT BOMBAY (PANAJI BENCH)
N. A. BRITTO, J.
Shree Hemant Pavel Gracias - Appellant
Versus
Shree Socorro Santan Fernandes - Respondent
Criminal Appeal No.58 of 2006
Decided on : 22nd August, 2007.
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Sentence. - Complainant no doubt has a remedy of filing a civil to recover his money but that in normal course would take years to be decided. Considering that the complainant has been deprived of, of his money, for a period of almost two years and also considering the object of legislation i.e. to inculcate faith in the efficacy of ban king system and credibility in transacting business by cheques ends of justice would be met by sentencing the accused under Section 138 of the Act to undergo S.I. for four months and also directing him to pay a compensation of Rs. 4.60 lakhs and in default to undergo S.I. for six months.
Negotiable Instruments Act, 1881 - Sections 138, 142 and 139 - Complaint - Contention - Complainant not payee in terms of Section 142(a) - Not upheld. - Since the accused had admitted that the cheque was given by him to the complainant there was no question of the complainant not being the payee of the same only because there was a mix up of first and middle name of the Complainant. The contention of the accused and the finding of the learned Magistrate that the complainant was not the payee in terms of Clause (a) of Section 142 of the Act cannot be upheld.
Criminal Procedure Code, 1973 - Section 374 - Negotiable Instruments Act, 1881, Section 138 - Appeal against acquittal - Offence alleged under Section 138 of Negotiable Instruments Act - Complainant given Rs. 4,00,000/- to accused as friendly loan - Towards discharge of liability of repayment accused issued a cheque dated 25.8.2005 - On presentation for encashment, cheque returned by Bank with endorsement that funds insufficient - Legal notice dated 9.9.2005 issued by complainant - Not replied by accused - Complainant filed complaint on 11.10.2005 - Examined himself - Accused denied allegation - False case contended - Examined himself in defence - Complainant not pleaded in complaint as to date when he advanced loan to accused - Silence of accused in not replying statutory notice fatal for him - Taken no action against complainant who allegedly deceived him - Unusual conduct of accused - Presumption available to complainant by virtue of Section 139 of N.I. Act - Not rebutted by accused - Magistrate not justified in acquitting accused under Section 138 of N.I. Act - Appeal succeeds - Impugned order set aside - Accused sentenced to undergo S.I. for 4 months - Directed to pay compensation of Rs. 4.60 lacs. - Although, the accused in this case has given his own evidence, the case of the accused appears to be far from probable. In case the complainant had misused the blank cheque not only by not giving to the accused Rs. 1,00,000/- as promised but on the contrary by making a further claim of Rs. 4,00,000/-, the accused would have immediately reacted and reacted strongly to the same. On the contrary, the accused has not been able to make any dent into the case of the complainant. It is true that the complainant has not been able to produce any document to support his claim of the advance of Rs. 4,00,000/- to the accused, except for the cheque but this in itself was insufficient to displace the presumptions available to the complainant. The complainant might have been required to prove the same in case the accused was able to displace the said presumptions available to the complainant by virtue of Sections 138 and 139 of the Act. Once it is held that the accused had failed to rebut the presumptions, the Magistrate ought to have concluded that the presumption in itself tantamounted to proof of the case of the complainant. Therefore, the Magistrate was not at all justified in acquitting the accused under Section 138 of the Act. Considering that the complainant has been deprived of his money, for a period of almost two years and also considering the object of legislation i.e. to inculcate faith in the efficacy of banking system and credibility in transacting business by cheques ends of justice would be met by sentencing the accused under Section 138 of the Act to undergo S.I. for four months and also directing him to pay a compensation of Rs. 4.60 lakhs and in default to undergo S.I. for six months. The accused to surrender before the trial Court within a period of four weeks to undergo the sentence.
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque - Validity of notice - Contents of notice which have been reproduced, required to be conveyed to the accused - Filing of criminal complaint - Cannot be said to incomplete.
This is a Complainant's appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 (Act, for short) by Judgment dated 3-5-2006 of the learned J.M.F.C., Canacona.
2. The Complainant and the accused were known to each other from student days and both are contractors.
3. The case of the Complainant is that he had given a friendly loan to the accused in the sum of Rs.4,00,000/- and towards discharge of his liability of repayment of the said loan, the accused had issued a cheque bearing No.007187 dated 25-8-2005 drawn on Canacona Urban Co-operative Credit Society Ltd. but when the said cheque was presented by him for encashment with the Citizen Cooperative Bank Ltd. the same was returned with memorandum of the same date with endorsement that the funds were insufficient.
The Complainant therefore sent a legal notice dated 9-9-2005 calling upon the accused to pay the amount due on the said cheque with interest at the rate of 18% per year within fifteen days from the receipt of the said notice which the accused received on 12-9-2005 but did not reply or comply with the same. The Complainant therefore filed the complaint on 11-10-2005 and examined himself in support of the same.
4. The case of the accused is that a false case has been filed against him. According to the accused, the accused had given to the Complainant a blank cheque with a promise that the Complainant would advance to the accused a sum of Rs.1,00,000/- which the Complainant did not advance to the accused till date. The accused examined himself in support of his defence.
5. The learned Magistrate has concluded that the notice was vague or in other words the learned Magistrate has observed that he was convinced that it falls short to appraise the accused the actual debt or liability he was required to pay to the Complainant. Admittedly, the statutory notice dated 9-9-2005 was received by the accused on 12-9-2005 and the accused did not reply to the same. It is not the case of the accused that it was vague or he did not understand the contents of the same. It is the case of the accused that the Complainant had assured him that he was not going to file a complaint against him and presumably for this reason he did not reply to the same. The notice dated 9-9-2005 clearly states that the accused was owing to the Complainant an amount of Rs.4.00,000/- and that the accused had issued a cheque in favour of the Complainant bearing No.007187 dated 25-8-2005 drawn on Canacona Urban Co-operative Credit Society for an amount of Rs.4,00,000/- in favour of the Complainant. It also mentions that the said cheque was presented for encashment and that the same was dishonoured for insufficient funds.
The notice also makes a demand calling upon the accused to pay the said sum of Rs.4,00,000/ - with interest at the rate of 18% within fifteen days from the receipt of the said notice and further states that failing the said payment the Complainant would be filing a criminal case against the accused under Section 138 of the said Act.
6. On behalf of the Complainant, learned Counsel Mr. Vaze has placed reliance on Central Bank of India and another Vs. Saxons Farms and others (1999)8 SCC 221 : 1999 ALL MR (Cri) 1853 (S.C.) wherein the Apex Court has stated that the object of notice is to give a chance to the drawer of the cheque to rectify his omission and also to protect all honest drawer. The Apex Court has also stated that no form of notice is prescribed in clause (b) of Section 138 of the Act but the requirement is that the notice should be given in writing within fifteen days of receipt of information from the bank regarding return of the cheque as unpaid and in the notice a demand for payment of the amount of the cheque has got to be made. In my view, the contents of the notice which have been reproduced herein above were more than sufficient to convey all that was required to be conveyed to the accused in connection with the advance made by th
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