Back
BOMBAY HIGH COURT
U.V. Barke, J.
Anant Bondre —Applicant
versus
Alfred David & Another —Respondents
Cri Misc. Application No. 54 of 2008
Decided on 4.12.2013
Counsel for the Parties:
For the Applicant:D.J. Pangam, Advocate.
For the Respondents:Rl, J. Godinho, Advocate.
IMPORTANT POINT
When a cheque is for an amount more than due, Section 138 of the Act is not attracted.
Headnote:Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Appeal against acquittal—Trial Court held that complainant accused had been able to rebut the presumption—Accused by an oral agreement agreed to sell his five trucks to complainant and complainant paid Rs.7,50,000 as part payment—Trucks were later on found to be hypothecated with financial institution and accused was alleged to have drawn two cheque, one for Rs.1,00,000 and second for Rs.5,00,000 towards repayment of amount recovered from complainant—Defence plea was that cheque for Rs.5,00,000 was given as security and cheque for Rs.1,00,000 was given towards settlement and that cheque had been encashed—When a cheque was for an amount more than due, Section 138 NI Act would not be attracted—Accused had been able to prove that cheque amount was more than the actual debt—Acquittal judgment called for no interference. (Paras 32 and 33)
U.V. Barke, J. —Heard Mr. D. J. Pangam, learned counsel appearing on behalf of the applicant and Mr. J. Godinho, learned counsel appearing on behalf of the respondent No.I.
2. Leave to appeal against the impugned judgment and order dated 29.11.2012 passed in Criminal Case No. 1117/OA/NI/05/D is granted, as prayed for. Stamp Number Main No.292/2013 be registered as appeal, forthwith.
3. Appeal admitted. Learned counsel appearing on behalf of the respondent No. 1 waives service of notice, after admission in the main appeal.
4. Heard forthwith with the consent of both the parties.
5. This appeal is directed against the judgment and order dated 29th November, 2012 passed by the learned Judicial Magistrate, First Class, (D-Court) Margao, in Criminal Case No. 1117/OA/N1/2005/D. The appellant is the complainant and respondent No.1 is the accused in that case.
6. The parties shall hereinafter be referred to in the manner in which their names appear in the cause title of the said Criminal Case.
7. The complainant had filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 (“the Act” for short). The case of the complainant, in short, was as follows:
In the last week of January, 2005, the accused had agreed, by an oral agreement, to sell to the complainant five trucks of Ashok Leyland make for a consideration of Rs. l6,00,000 for each of the trucks. Towards part payment of the said agreement, the complainant paid to the accused a total sum of Rs. 7,50,000. During the time of the said oral agreement the accused did not disclose to the complainant that the said trucks were hypothecated with financial institution and made the complainant to believe that they were completely owned by the accused. In April, 2005, the complainant came to know that the said trucks were hypothecated with a financial institution due to which the complainant requested the accused to return the money paid to the accused towards part consideration of the amount of the said five trucks. Towards the part payment of the said amount of Rs.7,50,000, the accused issued to the complainant two cheques: one for Rs.5,00,000, bearing No. 044604 dated 20th April, 2005 drawn on Saraswat Cooperative Bank Ltd., Panaji, Goa and the other for Rs. 1,00,000 bearing No. 393998 dated 23th May, 2005. The cheque which was for an amount of Rs.l,00,000 issued by the accused was encashed on presentation by the complainant. When the cheque for Rs.5,00,000 was presented for payment through banker of the complainant namely HDFC Bank, the same was returned on 22nd September, 2005 without being honoured with an endorsement “Funds Insufficient”. The complainant, through his Advocate issued statutory notice to the accused on 19th October, 2005. The notice was sent to the residential address of the accused and a copy of the same was sent to his office address. The said notice was received by the accused on 20th October, 2005 but the accused failed to make payment. Hence, the complainant filed the complaint which was registered as a Criminal Case No. 1117/OA/NI/2005/D.
8. The accused pleaded not guilty to the substance of accusation duly explained to him. In order to prove his case, the complainant examined himself as PWI and three more witnesses, namely Shri Elvis Rebello as PW2, Celio Afonso as PW3 and Savio D’Souza as PW4.
9. In the statement under Section 313 of Criminal Procedure Code, the accused admitted the agreement between him and the complainant but denied that the complainant had paid to him Rs.7,50,000 and that the cheques were given by him towards part repayment of the said amount.
10. According to the accused, he had given the cheque of Rs.5,00,000 as security and the cheque of Rs. 1,00,000 towards settlement. Accused examined himself as DW1, and three witnesses, namely Shri Noel Noronha as DW2, Shri Mario D’Souza as DW3 and Shri Stanley Fernandes as DW4.
11. By the Judgment and order dated 6th February, 2010, the learned Magistrate acquitted the accused ma
