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BOMBAY HIGH COURT
U.V. Bakre, J.
M/s Enpee Earthmovers —Petitioner
versus
M/s Resources International —Respondent
Cri Appeal Nos. 6 to 10 of 2010
Decided on 14.12.2012
IMPORTANT POINT
Standard of proof for Complainant is not ‘preponderance of probabilities’ but ‘proof beyond reasonable doubt’.
Headnote:(A) Negotiable Instruments Act, 1881—Sections 138 and 141—Dishonour of cheque—Offence against partnership firm—Dismissal of complaints—Complaint can be made by payee or holder in due course of cheque—Payee is partnership firm and complaints have been filed by this partnership firm—Complaints as filed by firm were maintainable. (Para 13)
(B) Negotiable Instruments Act, 1881—Sections 138 and 141 read with Section 139—Criminal Procedure Code, 1973—Section 203—Dishonour of cheque—Offence against partnership firm—Rebuttal of presumption—Presumption mandated by Section 139 of N.I. Act includes existence of legally enforceable debt or liability—However, presumption under Section 139 of N.I. Act is rebuttable—Debt or liability referred to Section 138 of the Act means debt or liability which existed on the date on which cheques were issued—When a cheque is for an amount more than due by accused, Section 138 of the Act is not attracted—There is no requirement that complainant must specifically allege in complaint that there was subsisting liability—But, that does not mean that Complainant would specifically allege something in Complainant and would then enlarge scope of same during trial—When accused has to rebut presumption under Section 139 of the Act, standard of proof for doing so is that of ‘preponderance of probability—But, standard of proof for Complainant is not ‘preponderance of probabilities’ but ‘proof beyond reasonable doubt’—Complainant has failed to prove that accused has committed offence punishable under Section 138 of Negotiable Instrument Act—Order dismissing complainants affirmed. (Paras 22, 23, 24, 37 to 40)
U.V. Bakre, J.— By this common judgment, I propose to dispose of all the above Criminal Appeals as they pertain to bouncing of cheques issued in relation to the same transaction.
2. Criminal Appeals No.6 of 2010; 7 of 2010; 9 of 2010 and 10 of 2010 have been preferred against the judgments/orders dated 30.9.2008 passed by the learned Judicial Magistrate First Class, Ponda in Criminal Cases No. 35/OA/99A; 34/OA99A; 39/OA99A; and 45/OA99A, respectively. Criminal Appeal No. 8 of 2010 has been filed against the judgment/order dated 29.9.2009 passed by the learned Judicial Magistrate First Class, Panaji in Criminal Case No. 254/ OA99C. Vide the said judgments, impugned in the present appeals, the Complaints filed by the appellant against the accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881. (N.I. Act, for short) were all dismissed.
3. The parties shall hereinafter be referred to in the same manner as they appear in the cause titles of the impugned judgments.
4. The Complainant is a partnership firm. The accused No. 1 is also a partnership firm and accused nos. 2 and 3 are its partners. The accused Nos. 2 and 3 are also the partners of M/s. Resourceful Earthmovers, which according to the Complainant is the sister concern of the accused. The case of the Complainant is that for various works carried out by the Complainant for M/s. Resourceful Earthmovers, the said firm had become due and liable to the Complainant in September, 1998 to pay a total sum of Rs.l,95,00,000, which figure was settled by the Complainant and M/s Resourceful Earthmovers at the end of September, 1998. The Complainant further alleged that the payment of the said dues were guaranteed by the accused who issued its own post-dated cheques for the payment of the said dues of Rs.l,95,00,000.
5. The details of the cheques with which we are concerned in the present appeals are as follows:
Cheque Date Cheque Amount Presented on Date Criminal
Number of Notice Complaint No.
784449 5.03.99 Rs.151akh 24.03.99 6.04.99 34/OA99A at Ponda
784450 20.03.99 Rs.151akh 24.03.99 6.04.99 35/OA99A at Ponda
784454 20.04.99 Rs.151akh 26.04.99 22.04.99 39/OA99A at Ponda
784455 5.05.99 Rs.151akh 17.05.99 27.05.99 45/OA99A at Ponda
784456 20.05.99 Rs.151akh 8.07.99 16.08.99 254/OA99C at Panaji
6. The said cheques were presented by the Complainant for encashment through its bankers, namely, The Goa Urban Cooperative Bank Ltd., Ponda branch. But all the said cheques came to be dishonoured. The Complainant issued separate Registered A/D notices through its advocate, in each case, to the accused demanding the payment of the amount of cheques and the said notices were received by the accused and all its partners. However, neither the accused nor the partners paid the cheque amounts within 15 days from the date of receipt of the notice. Therefore, the Complainant filed the said Complaints.
7. In the Criminal case No.254/OA/99/C, filed before the J.M.F.C., Panaji, some further details were narrated by the Complainant, which are as follows: Accused No. 1 and the other firm M/s Resourceful Earthmovers are jointly carrying on mining business and are closely associated and have been, in the course of business, accepting and meeting with the liabilities of each other in respect of various transactions by accepting and treating the same as joint liabilities. The Complainant is engaged in business of heavy earthmoving machinery and had carried out works of excavation and other works at Codli and Sangod Mines of M/s Resourceful Earthmovers for the period running from 21.3.1995 till December 1998. The accounts in respect of the said works were drawn up and the total sum payable to the Complainant in respect of the said works was ascertained at Rs.1,95,00,000 and this was done between the Complainant and accused Nos. 2 and 3 and said M/s Resourceful Earthmovers. At the relevant time the Complainant had stopped carrying out further
