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2008 (2) Bankmann 110 (Bom.)
BOMBAY HIGH COURT
N.A. Britto, J.
Vishnu Bhat —Appellant
versus
Narayan R. Bandekar and Ors. —Respondents
Criminal Appeal No. 4 of 2006
Decided on 25.10.2007
Counsel for the Parties:
For the Appellant:Mr. S.G. Bhobe, Advocate
For the Respondents:Mr. A.F. Diniz, Advocate
IMPORTANT POINT
The expression “any debt or other liability” both in Section 138 as well as in Section 139 of the Act would include a cheque drawn by one person towards a legal enforceable debt or liability of another person.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Order of acquittal by trial Court—Appeal—Demand notice was addressed to three different persons i.e. entities and was sent in one envelope addressed to accused No. 2, Managing Director of accused No. 1 Company and Firm accused No. 3—Cheque was issued by accused from his personal account but admittedly to meet the liability of accused No. A2 and A3 under an Award passed by Labour Court—Notice was duly served upon accused—Merely that accused had paid the amount to complainant later on will not absolve them of the liability for offence—Acquittal was unsustainable and accused were liable to be convicted—In view of facts and circumstances accused to pay Rs. 20,000 as compensation.
Result: Appeal allowed.
N.A. Britto, J.—This is a complainant’s appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by judgment dated 26.8.2005 of the learned JMFC, Vasco-da-Gama.
2. The parties hereto shall be referred to in the names as they appear in the cause title of the complaint.
3. The complainant was an employee of accused Nos. 2 and 3 whose services were terminated with effect from 16.6.1991. The accused No.1 (hereinafter referred to as the accused) was the Managing Director of accused No.2, a company, and partner of A3, a firm. Although, three accused were prosecuted in the said complaint case and all were acquitted, by order of this Court dated 19.1.2006, leave to appeal was granted only against the accused-Narayan R. Bandekar, as the subject cheque of Rs.30,000 was issued by him in his personal capacity towards the liability which respondents No.2 and 3 owed to the complainant.
4. The termination of the services of the complainant resulted in proceedings being filed before the Industrial Tribunal and they ended in an award dated 24.9.2001 which was the result of settlement arrived at between the parties on 6.9.2001. As per the said settlement/award the first installment of Rs.10,000 was to be paid to the complainant on 17.8.2001, the second installment of Rs.20,000 was to be paid on 7.9.2001, the third installment of Rs.30,000 was to be paid on or before 30.10.2001 and the final installment of Rs.31,600 was to be paid on or before 30.11.2001.
5. The complaint was filed on 29.1.2002. As per the complainant, the said settlement before the Industrial Tribunal on behalf of the accused Nos.2 and 3 was signed by the accused who was the Managing Director of accused No.2/Company and accused No.3/Firm. It was the case of the complainant that towards the payment of the third installment of Rs.30,000 the accused gave to the complainant cheque dated 15.11.2001 for Rs.30,000 issued on Development Credit Bank, Vasco-da-Gama, Goa. As per the complainant, the said cheque was drawn by the accused for and on behalf of the accused Nos. 2 and 3.
6. The complainant presented the said cheque for payment, first on 27.11.2001 to the drawee bank, and it was returned with remark, ‘refer to drawer’ whereupon the complainant again presented the said cheque on 12.12.2001 but this time the drawee bank returned the same dishonoured for insufficient funds in the account of the accused who was the drawer of the said cheque.
7. The complainant sent the notice dated 17.12.2001 by registered post A/D to the accused and demanded the payment of the amount mentioned in the said cheque within 15 days of the receipt of the notice and according to the complainant, the accused refused to accept the said notice and therefore according to the complainant it was good service. As per the complainant, the said notice was issued to the accused as the said cheque was drawn by him. The complainant stated that the said accused was also the Managing Director of A2 Company and partner of A3 Firm and hence it was a deemed notice to accused Nos. 2 and 3.
8. The complainant stated that the said cheque was issued by the accused towards the discharge of their liability to the complainant. However, the bankers of the accused dishonoured the cheque as the funds were insufficient in the account of the accused and the accused failed to make the payment within 15 days despite receiving the said notice, demanding the payment of the said dishonoured cheque.
9. In support of his case, the complainant had examined himself and the Managers of his bank where the cheque was deposited as well as the bank of the accused. The accused did not lead any evidence but it was the case of the accused that he had given instructions to withhold the payment. The accused also stated that he had stood as a surety.
10. After filing of the complaint on 29.1.2002, the case was fixed for settlement from time to time and the complainant was paid Rs.45,000 on 13.
