Sunday, 1 January 2017

Whether accused can stop payment of cheque on ground that area of land sold to him is less?


I   have   gone   through   the   impugned   judgment   to
ascertain the reasoning of the Magistrate in passing the order of
acquittal.    The Magistrate has referred to the evidence of the

accused   no.1,   wherein,   he   had   stated   that   an   amount   of
Rs.4,79,000/­ was not paid and the payment was kept pending for
the reason of clearance of title, survey of land, clearance from one
Jayantilal   Shah   and   Arun   Mehta,   with   whom,   apparently,   the
complainant had a dispute, etc.   The Magistrate also referred to
the evidence of the accused no.1, wherein, he stated that during
the survey of the land it was found that it was less by 137 sq.mts.
This fact was just believed by the Magistrate, though no details of
such survey were given by the accused no.1 in his evidence.  The
Magistrate also referred to the evidence of Jayantilal Shah as the
second witness for the defence, with whom, the complainant, as
aforesaid, had a dispute.   This dispute was regarding the same
land, and the said Jayantilal Shah had written to the accused no.1
informing him of the dispute and advising him not to have a
transaction with the complainant, as the transaction in respect of
the same land was pending between him and the complainant.
The  Magistrate  then  referred  to  the  provisions  of  Section  54
of   the   Indian   Contract   Act, Section 52 of the Transfer of
Property Act, Sections 18 and 19 of the Indian Contract Act and

came to the conclusion that the accused were not liable to pay the
amount of the contract.  Apart from the fact that the reference to
the said provisions was absolutely unwarranted and irrelevant in
the light of the controversy that was involved in the matter, the
fact remains that the only basis for the Magistrate's coming to the
conclusion that the accused were not liable to pay the amount,
was that the area of the plot of land in question was indeed less
than what was agreed to be sold.  The Magistrate, in that regard,
as aforesaid, only relied on the oral testimony of the accused no.1
to that effect, and did not require any report of any such survey.
The Magistrate was of the view that the complainant had not
specifically denied that the area of the plot of land was less while
giving rejoinder to the reply of the accused to the demand notice
in   the   complaint   etc.     What   he,   however,   overlooked   is   the
assertion of the accused persons, in reply to the demand notice
was itself vague i.e. 'the area is noticed to be much less.'   The
Magistrate overlooked that the accused no.1 even did not give the
details as to when and by whom the survey of the land was taken.
The Magistrate did not bother to think that the alleged survey

was, admittedly, not taken in the presence of the complainant.
Such oral evidence of the accused no.1 could not have been relied
upon to hold that the area was indeed less.  Once that itself was
not established, there was no question of judging by reference to
the   provisions   of   the   Indian   Contract   Act   as   to   whether   the
accused were liable to pay the amount of the cheques in question
or   not.    The   Magistrate   overlooked   that   the   accused   had   not
approached any civil court for avoidance of the contract or any
other   appropriate   relief,   where   the   dispute   could   have   been
properly adjudicated upon, but were merely content with holding
back the part of the payment.   The Magistrate overlooked that
after the Agreement, Conveyance was effected and the property
was actually conveyed to the accused and was in their possession.
Moreover, as aforesaid, the Agreement at Exh.D1 clearly indicates
    that the accused had agreed to purchase the property on     'as it is
whe re it is condition.'  The evidence of the accused no.1 was
clearly,   contrary   to   the   terms   of   the   written   agreements   /
instruments and could not have been relied upon.

16 The   reasoning   of   the   Magistrate   and   the   approach
adopted by him was not in accordance with law.  Here, there was
a completed and clear transaction between the complainant and
the   accused,   and   cheques   had   been   issued   by   the   accused   in
favour of the complainant towards the payment of the balance
consideration in respect of the land purchased by them from the
complainant.    The object  of  Section 138 of  N.I.Act  is to  lend
credibility to the cheque transaction by bringing them on par with
transactions in cash.  Even assuming that the accused had a right
to recover the amount of compensation paid to the complainant,
on   the   basis   of   some   mistake   or   misrepresentation,   still,   the
accused were not entitled to withhold the payment of the cheque
which was agreed to be done when the Conveyance was effected.
The accused had got the property conveyed in their name by a
registered   Conveyance   Deed   and   it   was   not   open   for   them,
thereafter, to stop the payment of the cheque, which had been
issued towards the balance consideration, which was, as per the
notion   of   the   parties   at   the   time   when   the   Conveyance   was
effected, payable to the complainant.

17 Moreover, on facts, the stand of the accused persons
does   not   appear   to   be   sincere,   or   at   any   rate,   supported   by
satisfactory evidence.  In the first place, as aforesaid, that the area
of   the   plot   of   land   in   question   is   less,   itself   has   not   been
established.    Secondly,   the   accused   were   not   interested   in
approaching   a   civil   court,   where   the   issues   ­   (i)   whether   the
contract was voidable and the accused could avoid it, (ii) whether
there had been a fraud, misrepresentation or mistake, and (iii)
whether the accused were liable to recover some amount from the
complainant, and if so, how much, ­ could have been properly and
fully adjudicated.
18 This was a case where the cheques had been clearly
issued for the payment of what was agreed to be due and payable,
and that the payment would be received by the complainant on a
future date, was only an arrangement arrived at by the parties, by
mutual consent.  It was, infact, not necessary for the Magistrate to
have gone into the finer aspects of the matter in the prosecution in
respect of an offence punishable under Section 138 of the N.I.Act,

when, as per the notion of the parties, when the cheques were
given and when the transaction was completed, the accused were
liable to pay the amount.   There is no dispute that as per the
notion of the accused themselves, at that time, the amount was
due and payable to the complainant; and their claim is only that
the subsequent revelation made them realize that, that amount
should not be paid to the complainant.  If that was so, the proper
course for the accused persons would not be to stop the payment
of the cheques, but to raise the issue directly by approaching the
civil court and claiming refund of the excess amount, if any, paid
to the complainant.
19 The order of acquittal, as recorded by the Magistrate,
is not proper and legal. The accusation against the respondents
had been proved and they were liable to be convicted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.116 OF 2006
PRADEEP KASHIRAM KADAM
V/s.
K.A.VERGHESE AND OTHERS

CORAM : ABHAY M. THIPSAY, J.
DATE : 24th JUNE 2015.
Citation: 2016 ALLMR(CRI) 4838

1 The appellant is the original complainant.   He had
prosecuted respondent nos.1, 2 and 3 herein, on the allegation
that they had committed an offence punishable under Section 138
of   the   Negotiable   Instruments   Act   ('N.I.Act'   hereinafter).   The

Metropolitan   Magistrate,   44th  Court,   Andheri,   Mumbai,   after
holding a trial found the said respondents not guilty and passed
an   order   of   acquittal.     Being   aggrieved   by   the   said   order   of
acquittal, the appellant, after obtaining special leave of this court,
has filed the present appeal, challenging the order of acquittal.
2 For the sake of convenience and clarity, the appellant
shall   hereinafter   be   referred   to   as   'the   complainant'   and   the
respondent nos.1, 2 and 3 as 'the accused'.
3 The case of the complainant, as made out from the
complaint filed by him, was in brief, as follows :
That, by an Agreement for Sale dated 6th  July 1994,
the complainant had agreed to sell, transfer and convey all his
rights, title and interest in respect of a certain immovable property
to the accused persons, who were, at the material time, carrying
on business of builders and developers in the name and style of
M/s.Kalpana Constructions.  That, the accused persons made the
part   payment   towards   the   purchase   of   the   said   property   and

requested   the   complainant   to   complete   the   transaction   by
executing the Conveyance in favour of the accused persons.  That,
the complainant agreed to convey the property to the accused
persons, but required payment of a sum of Rs.4,79,000/­, which
was the balance consideration, to be paid by the accused to the
complainant by August 1996.  The three accused executed, by way
of security for payment, an Indemnity bond cum Declaration, on
2
nd  November 1996, and relying on the representations of the
accused, the complainant conveyed the property to the accused
persons by executing a Conveyance Deed, though the full amount
of consideration had not been received by him from the accused.
That,   the   accused   did   not   make   the   payment   of   the   balance
amount within the stipulated time, but issued two cheques – one
in   the   sum   of   Rs.4,79,000/­   and   the   other   in   the   sum   of
Rs.1,00,000/­, being the amount due and payable towards the
balance   of   the   purchase   price   and   the   interest   on   delayed
payment, respectively.  When the said cheques were deposited by
the complainant, they were dishonoured with the banker's remark
'payment stopped by the drawer'.   That, the complainant then

made a demand in respect of the amount of the said cheques as
contemplated   under  Section   138   of   the   N.I.Act.     The   accused
persons received the demand notice, but failed to comply with the
requirement and raised certain false and frivolous contentions.  It
is, thereafter, that the complainant filed a complaint in the court
of the Magistrate, pursuant to which, the accused, as aforesaid,
came to be prosecuted.  
4 I   have   heard   Mr.Jitendra   G.   Damani,   the   learned
counsel   for   the   appellants.     I   have   heard   Mr.P.M.Havnur,   the
learned counsel for the accused nos.1, 2 and 3.   I have heard
Mrs.M.R.Tidke, the learned APP for the State – Respondent no.4.
With the assistance of the learned counsel, I have gone through
the record and proceedings before the Magistrate.   I have gone
through the evidence and the impugned judgment carefully.
5 The complainant examined himself as a witness during
the trial.  He also examined one Girish Shah – an employee of the
bank – through whom the statement of accounts of M/s.Kalpana

Constructions was  got  produced.    The accused no.1 examined
himself as a defence witness and also examined one Jayantilal
Shah as the second witness for the defence.  
6 That, the cheques in question had been signed by the
accused no.1 is not in dispute, and that, the cheques had been
signed and issued by him on behalf of all the accused, is also not
in   dispute.     That,   they   had   been   issued   in   favour   of   the
complainant is also not in dispute.   That, they had been issued
towards   the   transaction   of   the   purchase   of   the   property   in
question is also not in dispute.  That, the cheques in question were
dishonoured   as   the   bankers   of   the   accused   persons   were
instructed not to make the payment of the said cheques, is also
not in dispute.  That, there was no sufficient balance in drawer's
account, so as to honour the cheques, is also not in dispute.  That,
a demand notice was received by each of the accused is also not in
dispute, and obviously, that the amount in respect of the said
cheques has not been paid is also not in dispute.   The accused
persons during the trial had come up with a case that they had

valid   and   proper   justification   for   not   paying   the   amounts   of
cheques in question.  The same contention has been taken before
this court also.  
7 Though apparently, a number of grounds were urged
as and by way of justification for not making the payment of the
said cheques, before the trial court, only one of them is specifically
and emphatically put forward before this court, viz., 'that the area
of   the   plot   of   land,   which   was   sold   by   the   complainant   to   the
accused, was less than what was mentioned in the Agreement for
Sale   and   the   Conveyance   Deed.'     It   is   contended   that   the
consideration was fixed on the basis that the plot of land was of a
particular area, but since it was revealed that it comprised of a
lesser area, the complainant was not entitled to have the agreed
consideration, and that, the price of the land was liable to be
reduced proportionately.   Thus, in short, the contention is that,
since the area of the plot of land in question was less than what
was believed to be at the time of entering into the Agreement for
Sale and effecting Conveyance, the accused persons were entitled

to have a reduction in the purchase price to be paid by them to the
complainant,   and   were,   therefore,   justified   in   withholding   the
payment of the balance amount for which the cheques had been
issued.
8 Mr.Damani, the learned counsel for the complainant,
submitted that, the stand taken by the accused persons was a
thoroughly dishonest one.  He submitted that the Agreement for
Sale was entered into on 6th  July 1994.   That, the Conveyance
Deed was executed on 19th August 1995, and that, till that time
the accused persons had not raised any grievance about the area
of the land agreed to be sold being less than mentioned in the Sale
Deed.   The same area was mentioned in the Conveyance Deed
also.  Mr.Damani also pointed out that even thereafter the accused
persons had, on 2nd November 1996, executed an Indemnity bond
cum Declaration, but at that time also, there was no reference to
the area of the plot of land to be less than that mentioned in the
Agreement and the Conveyance.     Mr.Damani lastly contended
that, the contention that the area of the plot of land was less than

that agreed to be sold, was false, and there was nothing to support
such assertion.
9 Mr.Havnur,   the   learned   counsel   for   the   accused
persons, on the other hand, attempted to show that the area of the
plot of land that was conveyed to the accused was indeed less.
According to him, the accused persons, after the Conveyance was
effected, got the area of the plot of land measured and found the
same to be less by 137 square yards.  He, therefore, submitted that
under these circumstances, the complainant was not entitled to
have   the   cheques,   which   were   given   for   the   payment   of   the
balance consideration, encashed.  
10 It is not possible to accept the contention advanced on
behalf of the accused for a number of reasons.
11 In the first place, the cheques had been issued towards
the balance of amount of consideration that was to be paid by the
accused   to   the   complainant.     Inspite   of   the   fact   that   full

consideration   was   not   paid,   the   accused   got   the   Conveyance
executed and got the property transferred into their name only on
the basis that the balance would be paid.  It was, therefore, not
open for them to say, after having got the property transferred in
their name on the assurance that the balance consideration would
be paid, and only after the cheques issued for the payment thereof
were dishonoured, that they will not pay the same.  
Secondly,   the   property   has   been   described   in   the
Agreement as “the piece or parcel of land admeasuring about 569.1
sq.yds. equivalent to 472.26 sq.metres or thereabout and bearing
Survey No.42, Hissa No.19, (Part) and C.T.S.No.308-B situate
lying and being at Jeevan Vikas Kendra Marg, Koldongri, Vile
Parle (East), Bombay 400 057.” The property has been described
in   the   Schedule   in   greater   details,   and   is   described   by   the
boundaries thereof.  It is stated to be “bounded as follows : that is
to say : on or towards the North : by an 18 ft. means of access
and forming land in part of Survey No.42 Hissa No.20 : on or
towards the South by land in Survey No.28, Hissa No.1 (Part) on
or towards the East by the land in Survey No.20, Hissa No.22 and

on or towards the West by Plot No.1 of the sanctioned and
approved lay out and sub-division and bearing Survey No.42, Hissa
No.19(Part) Survey No.28, Hissa No.4 and shown delineated on the
Plan thereof hereto annexed.” A   plan   of   the   property   is   also
annexed to the Agreement to Sale.
12 It is not  the case of the accused persons that this
description   of   the   property   by   its   Survey   number,   Hissa
number,   C.T.S.   number  etc.,   as   given   in  the  Agreement,   is
wrong.   It is also  not  the case of the accused persons that the
boundaries   of   the   plot   of   land   in   question   has   been   wrongly
shown or described in the Agreement.  Even in the Conveyance,
the property is described in the same manner.   In the schedule
thereto, the property is described in the same manner, as has been
described   in  the  Schedule  to   the  Agreement  to   Sale.    All  the
boundaries   of   the   plot   of   land   in   question,   have   also   been
described   in   the   same   manner.     The   question   is   'when   the
particular plot of land is described by Survey number and C.T.S.
number and when the boundaries thereof are  well defined  can the

purchaser   raise   a   plea   that   he   is   not   liable   to   pay   the   agreed
consideration, but is entitled to have it reduced, because on actual
measurement, the area of the property is found to be less than that
mentioned in the Agreement and / or Conveyance Deed, though the
other   description   of   the   property   –   particularly   that   of   the
boundaries   thereof   –   is   correct.'     In   my   opinion,   when   the
boundaries of the property are well defined and when a particular
consideration is fixed for the property, described by its boundaries,
it would not be open for the purchaser to raise such a plea unless
the purchaser can establish fraud or misrepresentation, as defined
in Sections 17 and 18 of the Contract Act.  The accused persons
had  gone  ahead  with  the  Conveyance  by  agreeing  to  pay   the
balance   consideration.   They   had   indemnified   the   complainant
against any possible loss or damage due to the non­payment of the
consideration amount.  Moreover, they had not taken any steps to
avoid the contract.   After having got the property transferred in
their name by assurance of paying the balance amount due and
payable, they are simply content on avoiding the payment thereof.

13 However, that is also not the real point that needs
determination.     The   cheques   had   already   been   issued   by   the
accused persons.  Infact, the date of the cheque was got extended
by the accused persons by making a request to the complainant
and by agreeing to pay an additional sum of Rs.1,00,000/­ (for
which a separate cheque came to be issued) as a consideration for
the complainant granting further time to the accused persons to
pay the balance consideration.  Thus, the transaction of sale, and
even the Conveyance was already complete on a given date and
the amount agreed to be paid towards the purchase price of the
plot of land, had already fallen due. The accused persons were
supposed to pay the entire consideration at that time itself, but it
is because of their own inability to pay the entire consideration at
the   time   when   the   transaction   was   completed,   that   time   was
granted by the complainant to them to make the payment.  The
transaction was complete at that stage itself and further time that
was given to the accused persons to pay the balance consideration
was only an arrangement arrived at by and between the parties.
Had the full consideration been paid at that time, the complainant

would have got the agreed amount.   When such is the position,
the accused persons were not entitled to withhold the payment of
the cheques, even if it is assumed just for the sake of argument,
that they later found the area of the plot of land to be less than
mentioned in the Agreement and / or Conveyance.  It is because,
there was no such discovery viz., of the area being less at the time
when the payment of the consideration was to be made.  All that
can be said in that regard is that in such a case, the accused could
have taken appropriate legal proceedings against the complainant
for   avoidance   of   the   contract   on   the   ground   of   fraud,   or
misrepresentation, or recovery of the excess amount paid to the
complainant, on the basis of a mistake.  
14 Apart   from   this,   there   does   not   seem   to   be   any
satisfactory evidence for showing that the area of the plot of land on
measurement was found to be less. Moreover, when did the accused
realize   this,   is   not   clear.     In   the   reply   to   the   demand   notice
submitted   by   the   accused   persons,   a   number   of   reasons   for
stopping the payment of the cheques have been mentioned, and

one of them is that the area of the land was noticed to be 'much
less'  than what was supposed to have been handed over to the
accused persons.  There is such a vague assertion, but how much
area was less has not been specified.   It appears from the reply
that the accused persons wanted some encroachment upon the
land by one Jalusha Housing Society to be removed, and to get
'the deficit area recovered from Jalusha Housing Society.'   Thus,
the dispute in reality does not appear to be a plain dispute about
the area being less, but apparently accused had some grievance
about   the   encroachment   on   the   said   land.     Such   grievance,
obviously, could not be raised by the accused persons after the
Agreement   was   completed   and   the   property   was   conveyed   by
executing Conveyance Deed, particularly because, the Agreement
at   Exh.D1   clearly   indicates   that   the   accused   had   agreed   to
    purchase the property on     'as it is where it is condition.'
15 I   have   gone   through   the   impugned   judgment   to
ascertain the reasoning of the Magistrate in passing the order of
acquittal.    The Magistrate has referred to the evidence of the

accused   no.1,   wherein,   he   had   stated   that   an   amount   of
Rs.4,79,000/­ was not paid and the payment was kept pending for
the reason of clearance of title, survey of land, clearance from one
Jayantilal   Shah   and   Arun   Mehta,   with   whom,   apparently,   the
complainant had a dispute, etc.   The Magistrate also referred to
the evidence of the accused no.1, wherein, he stated that during
the survey of the land it was found that it was less by 137 sq.mts.
This fact was just believed by the Magistrate, though no details of
such survey were given by the accused no.1 in his evidence.  The
Magistrate also referred to the evidence of Jayantilal Shah as the
second witness for the defence, with whom, the complainant, as
aforesaid, had a dispute.   This dispute was regarding the same
land, and the said Jayantilal Shah had written to the accused no.1
informing him of the dispute and advising him not to have a
transaction with the complainant, as the transaction in respect of
the same land was pending between him and the complainant.
The  Magistrate  then  referred  to  the  provisions  of  Section  54
of   the   Indian   Contract   Act, Section 52 of the Transfer of
Property Act, Sections 18 and 19 of the Indian Contract Act and

came to the conclusion that the accused were not liable to pay the
amount of the contract.  Apart from the fact that the reference to
the said provisions was absolutely unwarranted and irrelevant in
the light of the controversy that was involved in the matter, the
fact remains that the only basis for the Magistrate's coming to the
conclusion that the accused were not liable to pay the amount,
was that the area of the plot of land in question was indeed less
than what was agreed to be sold.  The Magistrate, in that regard,
as aforesaid, only relied on the oral testimony of the accused no.1
to that effect, and did not require any report of any such survey.
The Magistrate was of the view that the complainant had not
specifically denied that the area of the plot of land was less while
giving rejoinder to the reply of the accused to the demand notice
in   the   complaint   etc.     What   he,   however,   overlooked   is   the
assertion of the accused persons, in reply to the demand notice
was itself vague i.e. 'the area is noticed to be much less.'   The
Magistrate overlooked that the accused no.1 even did not give the
details as to when and by whom the survey of the land was taken.
The Magistrate did not bother to think that the alleged survey

was, admittedly, not taken in the presence of the complainant.
Such oral evidence of the accused no.1 could not have been relied
upon to hold that the area was indeed less.  Once that itself was
not established, there was no question of judging by reference to
the   provisions   of   the   Indian   Contract   Act   as   to   whether   the
accused were liable to pay the amount of the cheques in question
or   not.    The   Magistrate   overlooked   that   the   accused   had   not
approached any civil court for avoidance of the contract or any
other   appropriate   relief,   where   the   dispute   could   have   been
properly adjudicated upon, but were merely content with holding
back the part of the payment.   The Magistrate overlooked that
after the Agreement, Conveyance was effected and the property
was actually conveyed to the accused and was in their possession.
Moreover, as aforesaid, the Agreement at Exh.D1 clearly indicates
    that the accused had agreed to purchase the property on     'as it is
whe re it is condition.'  The evidence of the accused no.1 was
clearly,   contrary   to   the   terms   of   the   written   agreements   /
instruments and could not have been relied upon.

16 The   reasoning   of   the   Magistrate   and   the   approach
adopted by him was not in accordance with law.  Here, there was
a completed and clear transaction between the complainant and
the   accused,   and   cheques   had   been   issued   by   the   accused   in
favour of the complainant towards the payment of the balance
consideration in respect of the land purchased by them from the
complainant.    The object  of  Section 138 of  N.I.Act  is to  lend
credibility to the cheque transaction by bringing them on par with
transactions in cash.  Even assuming that the accused had a right
to recover the amount of compensation paid to the complainant,
on   the   basis   of   some   mistake   or   misrepresentation,   still,   the
accused were not entitled to withhold the payment of the cheque
which was agreed to be done when the Conveyance was effected.
The accused had got the property conveyed in their name by a
registered   Conveyance   Deed   and   it   was   not   open   for   them,
thereafter, to stop the payment of the cheque, which had been
issued towards the balance consideration, which was, as per the
notion   of   the   parties   at   the   time   when   the   Conveyance   was
effected, payable to the complainant.

17 Moreover, on facts, the stand of the accused persons
does   not   appear   to   be   sincere,   or   at   any   rate,   supported   by
satisfactory evidence.  In the first place, as aforesaid, that the area
of   the   plot   of   land   in   question   is   less,   itself   has   not   been
established.    Secondly,   the   accused   were   not   interested   in
approaching   a   civil   court,   where   the   issues   ­   (i)   whether   the
contract was voidable and the accused could avoid it, (ii) whether
there had been a fraud, misrepresentation or mistake, and (iii)
whether the accused were liable to recover some amount from the
complainant, and if so, how much, ­ could have been properly and
fully adjudicated.
18 This was a case where the cheques had been clearly
issued for the payment of what was agreed to be due and payable,
and that the payment would be received by the complainant on a
future date, was only an arrangement arrived at by the parties, by
mutual consent.  It was, infact, not necessary for the Magistrate to
have gone into the finer aspects of the matter in the prosecution in
respect of an offence punishable under Section 138 of the N.I.Act,

when, as per the notion of the parties, when the cheques were
given and when the transaction was completed, the accused were
liable to pay the amount.   There is no dispute that as per the
notion of the accused themselves, at that time, the amount was
due and payable to the complainant; and their claim is only that
the subsequent revelation made them realize that, that amount
should not be paid to the complainant.  If that was so, the proper
course for the accused persons would not be to stop the payment
of the cheques, but to raise the issue directly by approaching the
civil court and claiming refund of the excess amount, if any, paid
to the complainant.
19 The order of acquittal, as recorded by the Magistrate,
is not proper and legal. The accusation against the respondents
had been proved and they were liable to be convicted. 
20 At this stage, I have heard the learned counsel for the
parties   on   the   question   of   sentence.     In   the   facts   and
circumstances   of   the   case,   I   do   not   think   that   a   sentence   of

imprisonment is called for.  It is not disputed before me that the
accused persons are an association of persons, who had entered
into   the   relevant   transaction   with   the   complainant,   and   that,
though the cheques had been signed only by accused no.1, the
other   accused   are   also   jointly   and   severally   liable   to   pay   the
amount of the said cheques.  Infact, that position is accepted by
the accused themselves before me.
21 The appeal is allowed.
The impugned judgment and order of acquittal is set 
aside. 
Respondent nos.1, 2 and 3 are convicted of an offence 
punishable   under   Section   138   of   the   Negotiable
Instruments Act, and each of them is sentenced to pay 
a fine of Rs.3,75,000/­ (Rupees Three Lac Seventy Five
Thousand   Only),   in   default,   to   suffer   Simple
Imprisonment for Four (4) months.
If the fine is realized, an amount of Rs.11,00,000/­
(Rupees Eleven Lac Only) therefrom, shall be paid to
the appellant as compensation.

On   the   oral   prayer   of   the   learned   counsel   for
respondent   nos.1   and   2,   time   of   eight   weeks   from
today, is granted to the respondents to pay the amount
of fine.
The appeal is disposed of in the aforesaid terms.
(ABHAY M. THIPSAY, J.)

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