Back
BOMBAY HIGH COURT
A.P. Lavande, J.
Sheikh Shabbir —Petitioner
versus
Shaikh Yusuf —Respondent
Criminal Appeal No. 56 of 2010
Decided on 10.9.2012
IMPORTANT POINT
No drawer of cheque can be allowed to take dishonour of cheque issued by him lightly.
Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Goa Money Lenders Act, 2001—Section 231—Criminal Procedure Code, 1973—Section 378—Dishonour of cheque—Acquittal—Notice—Accused has not come with specific defence that he had not received notice—Once it is established that accused had given a signed cheque for Rs.5 Lakhs to complainant, it was for accused to establish under what circumstances, cheque was given to complainant—Evidence led by complainant clearly establishes that cheque was issued by accused from his account and same was dishonoured by bank— Merely because Section 31 stipulates that maximum rate of interest which can be fixed by Government in case of money lending should not exceed 24 % per annum, by itself would not be sufficient to hold that transaction entered into between complainant and accused in terms of memorandum of understanding was a money lending transaction— Magistrate has committed patent illegality in coming to finding that transaction was hit by Goa Money Lenders Act, 2001—Complainant has been able to establish ingredients of Section 138 of the Act beyond reasonable doubt against accused—Order of acquittal deserve to be quashed and accused is liable to be convicted for offence punishable under Section 138 of the Act. (Paras 14, 15, 18, 19, 21 and 23)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Sentence—Sentence for offence punishable under Section 138 of the Act should be of such a nature as to give proper effect to object legislature—No drawer of cheque can be allowed to take dishonour of cheque issued by him lightly—Very object of enactment of provision of Section 138 of the Act would stand defeated if sentence is of nature passed by Trial Magistrate and it was different matter if accused paid the amount during pendency of case. (Para 22)
A.P. Lavande, J.—Heard Mr. Sudesh Usgaonkar, learned Counsel for the appellant and Mr. Pereira, learned Counsel for the respondent.
2. By this appeal, the appellant (‘the accused’) takes exception to the judgment and order dated 31/12/2009 passed by the Judicial Magistrate, First Class, Vasco-da-Gama in Criminal Case No.66/OA/NIA/09/C acquitting the respondent of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).
3. The case of the complainant in brief is as follows :
The accused approached the complainant with the proposal that he wanted to extend his business of processing quick and quality photo film processing, by purchasing New Digital Film Processing Unit, Konica 808 Gold, run by him under the name and style “F. M. Studio” and requested the complainant to invest an amount of Rs. 5 Lakhs in the said business. The accused also assured the complainant that the business would fetch good profits and the complainant would get an amount of Rs. 12,50,000/- (Rs. twelve lakhs fifty thousand only) in the form of 25,000/- per month for 50 months. Accordingly, the complainant handed over Rs.5 Lakhs to the accused to be invested in the business and memorandum of understanding dated 25/07/2008 was drawn and executed between the accused and the complainant before Notary Shri T. T. Shreedharan at Vasco-da-Gama. According to the complainant, from the said amount, the accused purchased the New Digital Film Processing unit, but the accused did not pay an amount of Rs.25,000/- per month as agreed. Hence, the complainant requested the accused to return Rs.5 Lakhs. The accused issued the cheque dated 23/03/2009 drawn on Punjab National Bank, Vasco-da-Gama in favour of the complainant for an amount of Rs.5 Lakhs towards the repayment of the amount due to the complainant. He deposited the cheque in the Canara Bank, Panaji Branch. By communication dated 30/04/2009, the complainant was informed that the cheque was returned unpaid by the Punjab National Bank, Vasco-da-Gama under memo dated 29/04/2009 with endorsement ‘funds insufficient’. The complainant issued a legal notice dated 18/05/2009 to the accused and requested the accused to pay the amount of Rs.5 Lakhs. However, in spite of the receipt of the said notice, the accused neither replied to the said notice nor paid the said amount. Hence, the complainant filed the complaint on 04/07/2009.
4. Summons was issued to the accused and the substance of the accusation was explained to the accused. The accused denied the allegation and claimed to be tried. In Criminal Case No.66/OA/NIA/09/C, the complainant examined himself and produced several documents. The statement of the accused under Section 313 of Cr.P.C. was recorded. In answer to all the questions, except one, the accused answered that the statements made by the complainant against him were false. The accused did not lead any defence evidence. Learned Magistrate by the impugned judgment and order, acquitted the accused of the offence punishable under Section 138 of the Act.
5. Learned Magistrate acquitted the respondent primarily on the following grounds :
(i) The transaction between the accused and the complainant was a money lending transaction and as such, there was no legally enforceable debt and consequently, the offence under Section 138 of the Act was not made out.
(ii) There was variation in the name of the party (the accused) in the memorandum of understanding dated 25/07/2008 entered into between the parties.
6. Learned Magistrate framed the following three points for determination in the judgment :
(i) Whether the complainant proves that the debt is legally enforceable debt?
(ii) Whether the complainant proves that the accused has rebutted the presumption available under the Act?
(iii) Whether the complainant proves that a legal notice was issued to the accused and it was duly served on him?
Insofar as the receipt of notice issued under
Section 138 of the Act is concerned,
