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In the High Court of Bombay at Goa
U.V. BAKRE, J.
Enpee Earthmovers & Others
Versus
Resources International & Others
Criminal Appeal No. 6 of 2010, 7 of 2010, 8 of 2010, 9 of 2010 & 10 of 2010
Decided on : 14-12-2012
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque.
Where cheque issued by accused, was for an amount more than due by accused therefore Section 138 of Act not attracted.
Negotiable Instruments Act, 1881 - Sections 138 and 139 - Evidence Act, Section 92 - Presumption as to legally enforceable debt or liability.
Failure of complainant to prove beyond all reasonable doubt that accused has committed offence under Section 138 of Act, renders order, dismissing complaint and acquitting accused just and proper.
Negotiable Instruments Act, 1881 - Sections 138 and 139 - Presumption for dishonour of cheque.
Presumption under Section 139 of Act as to existence of legally enforceable debt or liability is rebuttable.
Negotiable Instruments Act, 1881 - Sections 138 and 141 - Complaint for dishonour of cheque.
In absence of averment as required under Section 141 of Act, complaint against accused, Director of company and partner of firm, who is not signatory to cheque in question, is not maintainable.
Negotiable Instruments Act, 1881 - Sections 138 and 142 - Complaint for dishonour of cheque.
Complaint under Section 138 of Act filed by firm, represented by both partners of firm who have signed complaint against accused person is maintainable.
Key Points: - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!) - (!)
By this common judgment, I propose to dispose of all the above Criminal Appeals as they pertain to bouncing of cheques issued in relation to the same transaction.
2. Criminal Appeals No. 6 of 2010; 7 of 2010; 9 of 2010 7 and 10 of 2010 have been preferred against the judgments/orders dated 30/9/2008 passed by the learned Judicial Magistrate First Class, Ponda in Criminal Cases No. 35/OA/99/A; 34/OA/99/A; 39/OA/99/A; and 45/OA/99/A, respectively. Criminal Appeal No. 8 of 2010 has been filed against the judgment/order dated 29/9/2009 passed by the learned Judicial Magistrate First Class, Panaji in Criminal Case No. 254/OA/99/C. Vide the said judgments, impugned in the present appeals, the Complaints filed by the appellant against the accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881. (N.I. Act, for short) were all dismissed.
3. The parties shall hereinafter be referred to in the same manner as they appear in the cause titles of the impugned judgments.
4. The Complainant is a partnership firm. The accused no. 1 is also a partnership firm and accused nos. 2 and 3 are its partners. The accused nos. 2 and 3 are also the partners of M/s. Resourceful Earthmovers, which according to the Complainant is the sister concern of the accused. The case of the Complainant is that for various works carried out by the Complainant for M/s. Resourceful 8 Earthmovers, the said firm had become due and liable to the Complainant in September, 1998 to pay a total sum of Rs.1,95,00,000/-, which figure was settled by the Complainant and M/s Resourceful Earthmovers at the end of September, 1998. The Complainant further alleged that the payment of the said dues were guaranteed by the accused who issued its own posted dated cheques for the payment of the said dues of Rs.1,95,00,000/-.
5. The details of the cheques with which we are concerned in the present appeals are as follows:
6. The said cheques were presented by the Complainant for encashment through its bankers, namely, The Goa Urban Cooperative Bank Ltd., Ponda branch. But all the said cheques came to be dishonored. The Complainant issued separate Registered A/D notices through its advocate, in each case, to the accused demanding the payment of the amount of cheques and the said notices were received by the accused and all its partners. However, neither the accused nor the partners paid the cheque amounts within 15 days from the date of receipt of the notice. Therefore, the Complainant filed the said Complaints.
7. In the Criminal case No.254/OA/99/C, filed before the J.M.F.C., Panaji, some further
Cheque number Date Cheque amount Presented on Date of Notice Criminal Complaint No.
784449 05/03/99 Rs.15 lakh 24.03.99 06/04/99 34/OA/99/A at Ponda
784450 20.03.99 20.03.99 Rs.15 lakh 24.03.99 06/04/99 35/OA/99/A at Ponda
784454 20.04.99 Rs.15 lakh 26.04.99 22.04.99 39/OA/99/A at Ponda
784455 05/05/99 Rs.15 lakh 17.05.99 27.05.99 45/OA/99/A at Ponda
784456 20.05.99 Rs.15 lakh 08/07/99 16.08.99 254/0A/99/C at Panaji
details were narrated by the Complainant, which are as follows:
Accused no. 1 and the other firm M/s Resourceful Earthmovers are jointly carrying on mining business and are closely associated and have been, in the course of business, accepting and meeting with the liabilities of each other in respect of various transactions by accepting and treating the same as joint liabilities. The Complainant is engaged in business of heavy earth moving machinery and had carried out works of excavation and other works at Codli and Sangod Mines of M/s Resourceful Earthmovers for the period running from 21/3/1995 till December 1998. The accounts in respect of the said works were drawn up and the total sum payable to the Complainant in respect of the said works was ascertained at Rs. 1,95,00,000/-and this was done between the Complainant and accused nos. 2 and 3 and said M/s Resourceful Earthmovers. At the relevant time the Complainan
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