Back
2010(1) Bankmann 453 (Bom.)
BOMBAY HIGH COURT
R.C. Chavan, J.
M/s. Paul Dias and Sons —Appellant
versus
M/s. SDS Shipping Pvt. Ltd. —Respondent
Criminal Appeal No. 23 of 2007
Decided on 22.7.2008
Counsel for the Parties:
For the Appellant:A.P. Diniz, Advocate.
For the Respondent:A. Monteiro, Advocate.
IMPORTANT POINT
A notice demanding payment of amount under a dishonoured cheque could be sent electronically as well.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138(b)—Dishonour of cheque—Notice demanding payment of amount could be sent electronically as well—E-mail informing accused drawer of cheque about bouncing of cheque and demanding money would qualify to be a notice. (Para 9)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Complainant payee had received reply to demand notice wherein liability was admitted—Defence plea that reply was sent by Accounts Manager who was not in-charge of day to day business of accused company—During trial accused company was represented through same Accounts Manager and statement under Section 313 Cr.P.C. was recorded of same person—As a person in known of affair of company has word that company would make the payment should have weighed with trial Court—Acquittal could not be sustained on that ground. (Paras 5 to 7)
R.C. Chavan, J.—This appeal by the complainant takes exception to judgment rendered by the learned Judicial Magistrate, First Class, Vasco in Criminal Case No.536/04 whereby the learned Magistrate acquitted the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act.
2. The facts which led to filing of the complaint are as under:
The complainant/Company are Ship Chandlers who provide various ship stores to ships which call at Mormugao Port. The respondent/company has been arranging for supply of such stores through the complainant as Agents of Russian Vessel A. A. Sidorenko. The respondent has issued cheques No.353919 and 353921 dated 22.8.2003 and 30.9.2003 drawn on Centurion Bank at Vasco for Rs.2,00,000 each towards ship stores supplied to the said Russian Vessel A.A. Sidorenko. The complainant presented the first cheque No. 353919 for clearance on 25.8.2003 through their bankers, which was returned back for want of funds. It was again presented on 14.10.2003 and was once again returned for want of funds. This cheque alongwith other cheque No. 353921, were again presented on 19.2.2004 and both the cheques bounced for want of funds. On 18.3.2004. the complainant issued a notice by registered post acknowledgment due informing the accused of dishonour of cheques and making a demand of money at the earliest. This notice was .received by the accused on 20.3.2004 and was replied by letter dated 20-3-2004 acknowledging that the amount was due and promising payment after the Russian elections were over. Since the payment did not come through the complainant filed a complaint before the learned Magistrate.
3. Upon issuance process accused applied for being represented by one Dinesh Jamsandekar, Accounts Manager in place of the Managing Director. The Trial Court rejected his application leading the accused to file revision, which was allowed by the Sessions Judge. allowing Dinesh Jamsandekar to represent the accused.
4. Upon considering the evidence tendered. the learned Magistrate held that the complainant had failed to prove the ingredients of the offence punishable under Section 138 of the Negotiable Instruments Act and proceeded to acquit the respondent, which has led to filing of the present appeal.
5. I have heard Mr. Diniz. the learned counsel for the appellant and Mr. Monteiro, the learned counsel for the respondent. With the help of both the learned counsel, I have gone through the complaint, documents and the evidence tendered. The learned counsel for the appellant submitted that the learned Trial Magistrate should not have held against the complainant in face of reply to the notice of dishonour dated 18.3.2004 sent under the signature of Dinesh Jamsandekar. The contention of the learned . counsel for the respondent is that Dinesh Jamsandekar may have been the Accounts Manager. but had no authority to accept liability since he is not in charge and responsible for the conduct of the business of the company. What Dinesh Jamsandekar has done by notice dated 18.3.2004 is not acceptance of liability on behalf of the company. but merely acknowledgment on the basis of the material and the accounts books in his possession that the company was liable to make payment towards the cheques which were dishonoured. The learned counsel for the respondent submitted that the reply dated 22.3.2004 merely acknowledges the liability to pay legitimate dues and not the dues under the cheque.
6. This letter dated 22.3.2004 is in response to the notice dated 18.3.2004. The Advocate who sent the notice was careful in giving the reference No.LN/PJA/14/04. It would be seen that the reply of Dinesh Jamsandekar specifically quotes this reference and therefore, it cannot be said that the communication was made in a vacuum. It was specifically in response to the notice and hence if the Accounts Manager disputed the liability to pay the amount due under the cheques; the Manager ought to have said so. He should h
