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2008(2) Crimes 668 (Bom.)
BOMBAY HIGH COURT
R.M.S. Khandeparkar, J.
M/s. Coldspot—Appellant
versus
M/s. Naik Hotels & Ors.—Respondents
Criminal Appeal No. 73/2005
Decided on 7.2.2008
Counsel for the Parties:
For the Appellant:Ms. S. Linhares, Advocate.
For the Respondents:Mr. Valmika Menezes, Advocate.
IMPORTANT POINT
Where the facts required to form the basis of a presumption of law, no discretion is left with the Court, but to draw the statutory conclusion, but this would not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary.
Headnote:Negotiable Instruments Act, 1881—Section 138 and 139—Dishonour of three cheques each of Rs. 1,200/- issued towards rental for air conditioners rented by complainant-appellant to respondents—Order of acquittal by trial court on findings that cheques in question were without consideration—Appeal—Cheques were issued by respondents and presumption u/s. 139 of the Act arose—Question was whether respondents had been able to rebut the presumption which arose in the matter—Cheque were dated 6th June, 7th June and 8th June 2001—Letter dated 25.5.2001 sent by appellant to respondent showed that agreement of hire in relation to air conditioners was terminated in month of May, 2001 and rental charges were demanded at Rs 20/- per day for an AC—Appellant had filed civil suit towards claim of charges—Cheque thus could not be said relating to rented charges—Respondent had been able to rebut the presumption—Acquittal order called for no interference. (Paras 6, 7 & 10)
Result: Appeal dismissed.
JUDGMENT (ORAL)
R.M.S. Khandeparkar, J.—Heard. This appeal arises from the Judgment and Order dated 9.9.2005, passed by the Judicial Magistrate, First Class, Panaji in Criminal Case No.799/OA/2001/D.
2. By the impugned Judgment, the complaint filed under Section 138 of the Negotiable Instruments Act (“the Act”, for short) has been disposed of by acquitting the respondents-accused of the offence punishable under the said section. The challenge to the impugned judgment is essentially on the ground that the trial Court failed to consider that the cheques in question were issued towards the payment of rentals from February, 2001 onwards and considering the fact that such payment was made by way of cheques, there was presumption about existence of liability of the drawer of the cheques on the day when the cheques were issued. The trial Court having ignored this aspect of the matter, as well as the presumption arising under Section 139 of the said Act in relation to the said cheques in favour of the appellant, the impugned order needs to be quashed and set aside and the respondents be held guilty of the offence punishable under Section 138 of the Act.
3. A complaint came to be filed in the Court of J.M.F.C., Panaji on 11.10.2001, alleging that 3 cheques dated 6th June, 6th July and 6th August, all of the year 2001 issued by the respondents-accused in favour of the appellant, each worth Rs.1200/- were dishonoured for insufficient funds to the account of the accused in the Bank on which the said cheques were drawn and that, therefore, the respondents were liable to be prosecuted and punished for the offence punishable under Section 138 of the Act. The complaint discloses that some air conditioners of the appellant were rented to the respondents for installation thereof in the hotel premises of the respondents No. 1 and 2 and the rental charges of the said air conditions remained unpaid on 20.8.2001 and hence, a legal notice dated 3.9.2001 was issued, which was received by the respondent on 4.9.2001. However, the respondents failed and neglected to reply to the said notice, as well as to pay the amount equivalent to one payable under the dishonoured cheques, within 15 days from the date of receipt of the notice. Evidence in the form of affidavits was filed by the appellant on 7.8.2003 and the appellant was subjected to cross-examination on 20.1.2005 by the Advocate for the respondents. In the course of the recording of evidence, the appellant produced Return Memo, issued by the Bank and copy of the demand notice with an acknowledgment receipt in support of his case. In the course of the cross-examination, a letter dated 25.5.2001 sent by the appellant to the respondents, as also a copy of the legal notice dated 1.10.2001 issued by the appellant and a copy of the plaint in the suit stated to have been filed by the appellant against the respondents in the Court of Civil Judge, Sr. Division, at Panaji, were also produced on record. The respondents did not adduce any evidence. The trial Court, after
hearing the arguments, by the impugned Judgment, acquitted the respondents.
4. The learned Advocate appearing for the appellant, while placing reliance in the case of K.N. Beena v. Muniyappan and another1 and Hiten P. DalaI v. Bratindranath Banerjee2 and taking me through the evidence recorded before the trial Court, submitted that the letter dated 3.9.2001 clearly discloses that the cheques in question were in relation to the rental dues. However, this aspect has been totally ignored by the trial. Court while acquitting the respondents. She further submitted that Section 138 of the Act relates to matters pertaining dishonour of cheques and Section 139 of the Act speaks of the presumption that the holder of the cheque had received the cheque, in whole or in part of any debt or other liability of the drawer towards the holder, unless contrary is proved by the drawer. The trial Court has totally ignored these provisions of law while acquittin
