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2022 Supreme(Bom) 710
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. GADKARI, J.
Dilip Virumal Ahuja – Petitioner
Vs.
Rekha Vithal Patil and Another – Respondents
Criminal Appeal No. 268 of 2011
Decided On : 08-07-2022
Advocate Appeared:
For the Petitioner: B.S. Nayak.
For the Respondents: Prabhanjay R. Dave, Pradeep P. Kumawat, S.S. Hulke
The burden of proof on the accused to rebut the statutory presumptions under Sections 118 & 139 of the N.I. Act is crucial in cases under Section 138 of the N.I. Act.
Headnote:
N.I. Act - Appeal under Section 378(4) of the Code of Criminal Procedure - Sections 138, 139 of The Negotiable Instruments Act, 1881 - [RATIO DECIDENDI] - The court discussed the presumption in favor of the holder of the cheque under Section 139 of the N.I. Act and the burden of proof on the accused to rebut the presumption. The court also considered the evidence presented and concluded that the appellant failed to establish the issuance of the cheque by the respondent to discharge a legally enforceable liability. The court relied on the principles established in various case laws to support its decision.
Fact of the Case:
The appellant advanced a friendly loan to the respondent, who issued a cheque in favor of the appellant. The cheque was dishonored, and the appellant filed a complaint under Section 138 of the N.I. Act. The trial court convicted the respondent, but the appellate court set aside the conviction.
Finding of the Court:
The appellate court found that the appellant failed to establish the issuance of the cheque by the respondent to discharge a legally enforceable liability. The court also noted that the respondent had rebutted the statutory presumptions under Sections 118 & 139 of the N.I. Act.
Issues: The main issue was whether the respondent had issued the cheque to discharge a legally enforceable liability towards the appellant.
Ratio Decidendi: The court held that the appellant failed to prove the issuance of the cheque by the respondent to discharge a legally enforceable liability. The court also emphasized the burden of proof on the accused to rebut the statutory presumptions under Sections 118 & 139 of the N.I. Act.
Final Decision: The appeal was dismissed, upholding the appellate court's decision to set aside the conviction of the respondent.
JUDGMENT :
A.S. GADKARI, J.
1. This is an appeal under Section 378(4) of the Code of Criminal Procedure by the complainant against Judgment and Order dated 11th January 2010 passed by the learned Additional Sessions Judge, Greater Mumbai in Criminal Appeal No. 363 of 2007 preferred by Respondent No. 1, allowing the said appeal and setting aside the Judgment and Order of conviction and sentence under Section 138 of The Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) of Respondent No. 1 by the learned Metropolitan Magistrate, 30th Court, Kurla, Mumbai in C.C. No. 4825/SS/06 dated 3rd May 2007.
2. Heard Mr.Nayak, learned Advocate for Appellant, Mr.Dave, learned Advocate for Respondent No. 1 and Mr.Hulke, learned A.P.P. for Respondent No. 2-State. Perused entire record.
3. It is the case of Appellant that, he knew Respondent No. 1 about six years prior to lodgment of the present complaint. That, Respondent No. 1 was in need of money and therefore she approached Appellant and requested for grant of friendly loan of Rs.5,00,000/- (Rupees Five Lakh Only). Accordingly, Appellant advanced friendly loan of Rs.5,00,000/- to Respondent No. 1. That, Respondent No. 1 in discharge of her legal liability towards repayment of said loan issued a cheque in favour of Appellant, bearing No. 515582 dated 23rd March 2006 for a sum of Rs.5,00,000/- drawn on Central Bank of India, Sion Branch, Mumbai. Appellant deposited the said cheque with his banker for encashment, when the said instrument was dishonoured and returned to Appellant unpaid with a Bank Memo dated 24th March 2006 (Exh.P-4) for the reason ‘A/C CLOSED’. After receipt of intimation from his bank, Appellant issued statutory demand notice on 10th April 2006 (Exh.P-5) through his Advocate calling upon Respondent No. 1 to pay the amount due under the subject cheque within 15 days from the date of receipt of demand notice. The said notice was sent to Respondent No. 1 by R.P.A.D. as well as U.C.P. Despite receipt of notice, Respondent No. 1 neither complied with the demand made therein, nor replied the notice and therefore Appellant filed present complaint under Section 138 of N.I. Act.
4. The defence of Respondent No. 1 was of total denial. It was her further defence that, her signed blank cheques were stolen or misplaced from her shop and the said fact was intimated by her to her bank by letter dated 24th August 2005 and thereafter closed her account. That, Appellant thereafter misused the said blank cheque and filed present complaint to harass her. It is also her defence that, her husband expired on 1st August 2006 and after his demise her in-laws harassed her and drove her out of house. Her in-laws also snatched important documents and belongings lying in her house. That, as her husband was seriously ill and subsequently expired on 1st August 2006, she could not reply notice issued by Appellant. She has also stated that, immediately after loss/misplacement of her signed cheques / cheque-book, she immediately lodged a complaint (Exh.D-3) with Sion Police Station on 23rd August 2005 and therefore there was no question of issuing any cheque to Appellant on 23rd March 2006.
5. The Trial Court after recording evidence and hearing the learned Advocates appearing for the respective parties was pleased to convict Respondent No. 1 by its Judgment and Order dated 3rd May 2007.
Feeling aggrieved by the said Judgment and Order passed by the Trial Court, Respondent No. 1 preferred Criminal Appeal No. 363 of 2007 in the Court of Sessions at Greater Mumbai. The Appellate Court after re-appreciating entire evidence on record was pleased to allow the said Appeal by its Judgment and Order dated 11th January 2010 by setting aside the conviction and sentence recorded by the Trial Court.
In this brief premise Appellant/Org. Complainant has filed present Appeal.
6. Mr. Nayak, learned Advocate for Appellant submitted that, Respondent No. 1 did not reply notice dated 10th April 2006 issued under Section 138 of N.I.
