Back
BOMBAY HIGH COURT
Anuja Prabhudessai, J.
M/s. Jaimin Jewelery Exports Pvt. and Ors. —Applicants
versus
State of Maharashtra and Anr. —Respondents
Criminal Revision Application No.432 of 2015
Decided on 14.3.2017
(B) Negotiable Instruments Act, 1881—Sections 138 and 141 read with Sections 118(a) and 139—Criminal Procedure Code, 1973—Sections 397 and 401—Dishonour of cheques—Conviction and sentence—Offence against company—Cheques were issued towards repayment of Trade Finance Facilities availed by accused—Presumptions under Sections 118(a) and 139 of NI Act are rebuttable in nature—resumption under these provisions need not be rebutted only by adducing direct evidence but can be rebutted on the basis of facts elicited in cross examination—Power of attorney will not be competent to depose in respect of a transaction of which he has no knowledge—As a result thereof, accused will be precluded from effectively cross examining power of attorney and eliciting required material to dislodge statutory presumption—It is imperative that power of attorney authorised by an individual or juristic person has knowledge of transaction— Principle that power of attorney who files complaint for offence punishable under Section 138 of NI Act and deposes on behalf of payee must essentially have personal knowledge of transaction is also applicable to complaints filed by a juristic person. (Paras 38 and 39)
(C) Negotiable Instruments Act, 1881—Sections 138 and 141 read with Sections 118(a) and 139—Criminal Procedure Code, 1973—Sections 397 and 401—Dishonour of cheques—Conviction and sentence—Offence against company—Offence under Section 138 of NI Act though technical, is punitive in nature—Once accused had rebutted initial presumption it was imperative upon complainant to prove beyond reasonable doubt that cheques were issued towards existing debt or liability—Complainant has failed to discharge this burden—As a consequence thereof, ccused could not have been held guilty of said offence—Impugned orders have resulted in miscarriage of justice and this necessitates exercise of revisional powers—Accused acquitted of offence under Sections 138 read with 141 of NI Act. (Paras 76 and 77)
(D) Evidence Act, 1872—Section 65B—Admissibility of electronic records—Section 65B only relates to admissibility of electronic records—It authenticates genuineness of copy/computer printout and absolves parties from producing original—This section only makes computer output admissible on complying with requirements of the section—It does not prove actual correctness of entries and does not dispense with proof or genuineness of entries made in such electronic records—There is no presumption regarding genuineness of entries in electronic records. (Para 74)
Result: Revision Application allowed.
Anuja Prabhudessai, J.—By this revision application filed under Section 397 of the Code of Criminal Procedure, the Applicants herein have challenged the judgment and order dated 28th August, 2015 whereby the learned Sessions Judge dismissed the Criminal Appeal No.338 of 2012 and thus, confirmed conviction and sentence of the aforesaid Applicants under section 138 r/w. 141 of the Negotiable Instruments Act.
2. The Applicants are the original accused and shall be hereinafter referred to as ‘the accused’ whereas the Respondent No.2 herein is the complainant in C.C. No.821 of 2010 filed before the Metropolitan Magistrate, 12th Court, Bandra and shall be hereinafter referred to as the Complainant-company.
3. The Complainant-company was earlier known as Global Trade Finance Facility. Pursuant to the order dated 15th January, 2010 passed by this Court in Company Petition, the Global Trade Finance Facility was amalgamated with SBI Factors and Commercial Services Pvt. Ltd. As a consequence of the amalgamation, the name of the Company was changed to SBI Global Factors Ltd.
4. M/s. Jaimin Jewellery Exports Pvt. Ltd. (Accused No.1) was earlier a partnership firm with accused Nos.2 and 3 as its partners. The said partnership firm was registered and incorporated under the Companies Act, 1956 as a private limited company on 20th March, 2008. The accused Nos.2 and 3 are the Directors and authorised signatories of the accused No.1Company.
5. The case of the Complainant-company is that the accused No.1 had approached the Complainant-company for Trade Finance Facility. The Complainant-company, considered the request of the accused No.1 and sanctioned the Trade Finance Facility on 1st November, 2007. On 3rd November, 2007 the Complainant-company and M/s. Jaimin Jewellery Exports executed Global Accounts Receivable Agreement for Trade Finance Facility. The accused No.2 stood as a guarantor and issued a letter of guarantee dated 5th November, 2007 in favour of the Complainant-company. Since M/s. Jaimin Jewellery Exports, a partnership firm was registered and incorporated under the Companies Act, 1956 as a private limited Company, a fresh Global Accounts Receivable Agreement for Trade Finance Facility(ies) dated 26th November, 2008 was executed between the Complainant-company and the accused No.1 herein.
6. The Complainant-company stated that accused in discharge of their legally enforceable liability and debt towards repayment of above referred Trade Finance Facility(ies) due and payable to the Complainant-company, issued five cheques. The details of which are as under:
Sr. No. Cheque Cheque Amount in
No. Date Rupees
1 747001 31/10/2009 1,00,00,000/-
2 747002 31/10/2009 1,00,00,000/-
3 747003 31/10/2009 1,00,00,000/-
4 747004 31/10/2009 1,00,00,000/-
5 747005 31/10/2009 50,00,000/-
7. The said cheques were drawn on Canara Bank, Overseas Branch, Mumbai 400021 as part payment in favour of the Complainant-company and were duly signed by accused No.2 on behalf of accused No.1 Company.
8. The Complainant-company presented the cheques at Serial No.1 for encashment on 15th March, 2010. The cheque at Serial Nos. 2 and 3 were presented on 17th March, 2010 and 19th March, 2010, respectively whereas the cheques at Serial Nos.4 and 5 were presented for encashment on 20th March, 2010. All the said cheques were dishonoured for insufficient funds.
9. The Complainant-company by statutory notice dated 13th April, 2010 called upon the accused to effect the payment within 15 days from the receipt of the notice. The said notice was duly served upon the accused. By reply dated 4th May, 2010, the accused denied their liability and claimed that the cheques were issued as security. The Complainant-company vide letter dated 20th May, 2010 denied the contents of the said reply. The accused, having failed and neglected to pay the cheque amount, the Complainant-company filed a complaint under section 138 r/w. 141 of the Negotiable Instrume
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
