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BOMBAY HIGH COURT
A.P. Lavande, J.
Deogiri Transport —Appellant
versus
M/s Damodar Transport —Respondent
Cri. Appeal No. 55 of 2010
Decided on 17.10.2012
Counsel for the Parties:
For the Appellant:P.S. Rao, Advocate.
For the Respondents:S.D. Lotlikar, Senior Advocate with Mr. P.S. Lotlikar, Advocate.
IMPORTANT POINT
Merely because accused had taken unsustainable defence by itself would not be sufficient to come to conclusion that offence is made out against accused.
Headnote:Negotiable Instruments Act, 1881—Section 138 read with Sections 118 , 139 and 145—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Acquittal—When a cheque is issued presumption under Sections 118 and 139 is available in favour of complainant and it is for accused to discharge burden of proving that cheque was not issued in discharge of legally enforceable debt—There is no provision in the Act which entitles accused to lead evidence on affidavit—Magistrate permitted accused to file his evidence by way of affidavit to which no objection was taken by complainant—If objection was taken at the right time only course open to Magistrate to permit accused to step in box—There is only an irregularity which does not go to root of matter—Point for determination has not been properly framed—But this fact by itself would not be sufficient to reverse order of acquittal passed by Magistrate—Accused is entitled to prove his defence by preponderance of probability as in a civil case and he need not prove his case beyond reasonable doubt—Merely because accused had taken unsustainable defence by itself would not be sufficient to come to conclusion that offence punishable under Section 138 of the Act is made out against accused—Accused has been able to discharge burden cast on him that cheques were not issued towards legally enforceable debt—Appeal dismissed. (Paras 15 to 23)
A.P. Lavande, J.— Heard Mr. P.S. Rao, learned Advocate for the appellant and Mr. S. D. Lotlikar, learned Senior Advocate for the respondent.
2. By this appeal, the appellant takes exception to the judgment and order dated 30.6.2009 passed by Judicial Magistrate, First Class, Vasco da Gama in Criminal Case no. 551/NIA/2008/D by which respondent has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).
3. The appellant is the original complainant. The complainant filed the above case through power of attorney holder Shri Prakash Sutar alleging commission of the .offence punishable under Section 138 of the Act. According to the complainant, the accused had engaged services of the complainant for transporting iron ore since 2006 from M/s. Zeenarh Transport Company Mines, Hospet to M/s Sesa Industries Limited, Goa and while returning the complainant was transporting Met-coke for the accused from Mormugao Port Trust Harbour, Vasco to Hospet. According to the complainant, the accused issued two cheques dated 29.4.2008 for amounts of Rs.78,595 (Rupees seventy eight thousand five hundred ninety five only) and Rs.3,29,976 (Rupees three lakhs twenty nine thousand nine hundred seventy six only) drawn on Bank of Maharashtra, Hospet Branch. The cheques were deposited by the complainant. Upon deposit, cheques were dishonoured. Thereafter, by legal notice dated 4.6.2008 which was sent by registered post A/D., the complainant called upon the accused to make payment together with interest. However, the said notice returned back with the endorsement “unclaimed”. Thereafter, the complaint was filed.
4. In Criminal Case No. 551/NIA/2008/D, on behalf of the complainant, Shri Prakash Sutar the constituted attorney of Shri Shrinivas Pawar, the proprietor of the complainant firm was examined. The accused tendered his evidence by way of affidavit and thereafter, he was cross-examined. The defence of the accused was that he did not owe any money to the complainant nor he had any business transaction with the complainant. It was further his case that one Vijay Chikkodi was working with the accused to whom the accused had employed at the request of the complainant and said Chikkodi was in very good terms with the complainant. The accused had taken the defence that the cheques were lost and they were also forged.
5. Learned Magistrate framed the following points for determination which were answered against the complainant:
1. Whether complainant proves that the cheque issued was towards the discharge of legally enforceable debt?
2. Whether the accused has rebutted the presumption under Section 139 of the Negotiable Instruments Act?
6. Learned Magistrate held that there were no independent witnesses examined by the complainant to prove that there was oral transaction between the complainant and the accused in respect of the material. Learned Magistrate dismissed the complaint also on the ground that the complainant had not produced any documents in support of his case that amounts due in respect of two cheques were due to the complainant from the accused.
7. Mr. Rao, learned counsel appearing for the appellant/complainant submitted that the approach of the learned Magistrate is patently wrong inasmuch as the learned Magistrate has cast burden of proving consideration in respect of two cheques on the complainant when in fact in terms of Sections 118 and 139 of the Act there is presumption as to consideration and the same has to be rebutted by the accused either by leading evidence or by cross examination of the complainant and his witness. Learned counsel further submitted that the accused had taken patently false defence that cheques were lost and forged when in fact the accused even did not file any complaint regarding missing of the cheques or forgery of the cheques. Learned counsel further submitted that the cheques were returned with the endorsement “insufficient fund
