Back
GUJARAT HIGH COURT
Sonia Gokani, J.
Mukundlal Mohanlal Gandhi —Applicant
versus
State of Gujarat & Anr. —Respondents
Criminal Revision Application (Against Conviction - Negotiable Instrument Act) No.576 of 2014
Decided on 30.7.2015
Counsel for the Parties:
For the Applicant:Mr. SP Hasurkar, Advocate
For the Respondent No.1: Mrs. Hansa Punani, Addl.Public Prosecutor
For the Respondent No.2:Mr. Amrish K Pandya, Advocate
IMPORTANT POINTS:
(1) In a complaint u/s 138 of N.I. Act if complainant happens to die before his evidence is recorded, his son is competent to depose the existence of legally enforceable liability provided he proved if by his personal knowledge.
(2) When the Chapter XVII of the Negotiable Instruments Act leans in form of reimbursement of loss by compensation, it would be the duty of the Court that successful complainant gets the amount of cheque by way of compensation.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138 and 139—Dishonour of cheque—Conviction by Courts below—Revision—Cheques were issued towards edible oil supplied by complainant who was wholesaler in commodity—Conviction challenged on plea that complainant died and his son got impleaded and was examined and he having no personal knowledge of transaction, could not have proved legally enforceable liability—Whether son of complainant could establish existence of legally enforceable debt?—Son was association in business of his father, though after the transaction in question had already taken place—Witness proved his personal knowledge and had witnessed the transactions—In reply to demand notice accused took a plea that complainant had agreed to adjust the outstanding amount owed toward accused by brother of complainant—Accused thus admitted liability but pleaded adjustment and onus shifted upon him to prove his defence which he failed—Conviction was not liable to be interfered with. (Paras 8 to 11)
(ii) Negotiable Instruments Act, 1881—Section 138—Criminal Procedure Code, 1973—Section 357—Conviction for dishonour of three cheque for total amount of Rs.1,16,400—Courts below awarded sentence of imprisonment and fine of Rs.5000/- with default sentence—Courts must bear in mind need for granting compensation which could be up to double the cheque amount—It would be duty of court that successful complainant got the amount of cheque by way of compensation and interest thereon at 9% p.a. unless special circumstances warranted otherwise—Sentence part of judgment impugned deserved to be set aside in revisional jurisdiction for rectifying any illegality or error—Accused to pay cheque amount of Rs.1,16,400 with interest at 9% p.a. from the date of futing of complaint as compensation to complainant and under go sentence by courts below. (Paras 14 to 18)
Result: Revision dismissed.
JUDGMENT (CAV)
Sonia Gokani, J.—By way of present Revision Application preferred by the applicant under section 397 read with section 401 of the Code of Criminal Procedure, 1973, the applicant has challenged the legality and validity of the judgment and order of conviction and sentence dated March 05, 2012 rendered by the learned 11th Additional Chief Judicial Magistrate, Vadodara, in Criminal Case No.1817 of 1999, as also the judgment and order dated August 20, 2014 rendered by the learned 3rd Additional District and Sessions Judge, Vadodara in Criminal Appeal No.36 of 2012, whereby the learned Judge has confirmed the judgment and order of conviction and sentence passed by the trial Court, whereby the trial Court convicted the applicant for the offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) and sentenced him to undergo simple imprisonment for one year and a fine of Rs.5000/, in default to undergo simple imprisonment for 15 days.
2. The facts in brief are as under :
2.1 The respondent No.2complainant is in the business of trading in edible oil, who supplied oil to the applicant-convict. Three cheques were given to the respondent No.2complainant by the applicant, the details of which are as under:
Sr. No.
Cheque No.
Cheque Date
Amount
Drawn on
1.
087717
03.05.1999
Rs.45,000/-
The Baroda Traders Co.Op. Bank Ltd., Hathikhana, Fatepura, Vadodara
2.
0384621
07.05.1999
Rs.35,000/-
Patani Co.Op. Bank Ltd., Harni Road Branch, Vadodara
3.
38473
07.05.1999
Rs.35,700/-
Patani Co.Op. Bank Ltd., Harni Road Branch, Vadodara
2.2 When presented before the Bank, the said cheques came to be dishonoured on account of insufficiency of funds on June 03, 1999. The intimation was given to the respondent No.2complainant by the Bank in that respect of June 04, 1999, and, therefore, a demand notice came to be issued on June 11, 1999. On June 28, 1999, a reply was given to the show cause notice, which was averred to be evasive. A complaint, therefore, came to be filed. After adducing evidence and on giving ample opportunities to both the sides, the Court concluded that the charge having been proved, the applicant is held guilty under section 138 of the Act vide its judgment and order dated March 05, 2012. The very judgment and order of conviction and sentence was challenged before the lower Appellate forum by way of Criminal Appeal No.36 of 2012, which ultimately came to be confirmed by the Appellate Forum. It is urged that the original complainant has died and, therefore, his son has been replaced as impleaded as a complainant, who had no personal knowledge of the business of his late father. The other heirs were not joined. When the person who had no knowledge of the actual transaction had stepped into the witness box, on strength of such evidence, he did not discharge initial burden of proving the legally enforceable debt. It is further averred that when the purchase of the goods namely oil is disputed, no record of transaction can be proved and, therefore, the entire judgment and order is based on assumptions and presumptions. Moreover, the applicant is categorical that he has not given any reply to the notice. Even in his further statement under section 313 of the Code of Criminal Procedure, 1973, he has stated so, however, the Court has yet believed that the notice has been issued and, therefore, the wrong has been committed. Hence, present Revision Application.
3. A fortiori, Shri S.P. Hasurkar, learned counsel appearing for the applicant-convict has urged that unless the respondent No.2complainant discharges his liability of proving that there existed the legally enforceable debt, the Court could not be proceeded further and invoked presumption provided under section 139 of the Act. It is his say that the complainant knew not
