The learned trial Court is also expected to cover all these points while framing questions for determination which were not framed in this case nor there was a detailed discussion in respect of those ingredients. Even the rulings were simply listed by the trial Court without going into the ratio decidendi of the same
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1. This Appeal stems from judgment and order in Summary Criminal Case No. 13625/2006 decided on 13th February, 2009 by learned Judicial Magistrate, First Class, cum Special Court u/s 138 of the Negotiable Instruments Act, 1938, at Nagpur.
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2. With the consent of respective counsel, the Appeal is taken up for final hearing. Heard submissions of the respective counsel appearing for the parties, at length.
3. It is the grievance of the learned Advocate for the appellant that the trial Court dismissed the Criminal Complaint filed by the appellant ( original complainant ) ignoring oral as well as documentary evidence on record and has failed to exercise its discretion in accordance with law. Learned Advocate on behalf of the appellant submitted that the trial Court utterly failed to consider the effect of statutory presumption available in respect of the cheque issued from the accused pursuant to dishonour of the same.
4. It is the case of the complainant that the accused had taken loan in the sum of Rs.10,000/-, which he was bound to repay, of course, with interest. The amount due from the accused was in the sum of Rs.22,745/- in respect of which he had issued a cheque bearing No. 514034 on 20th April, 2006 which was presented by the complainant for collection but it came to be returned dishonoured with remarks "insufficient funds". After receiving intimation of dishonour on or about 21st April, 2006, the complainant had issued notice demanding the payment by notice dated 4.5.2006 which, according to the complainant, was received by the accused on 9.5.2006; however, since accused failed to comply with the notice, the complaint was filed on 23rd June, 2006. It is the further contention of the complainant that the trial Court ought to have considered the documentary evidence in the 3
light of statutory presumptions available in respect thereof before deciding the case but, according to learned Advocate for complainant, the trial Court ignored the legal provisions as well as facts and circumstances of the case.
5. Learned Advocate appearing on behalf of the accused/respondent advanced his submission in support of the judgment and order of acquittal to argue that even otherwise the loan was granted in the year 2000 and the complainant did not obtain written acknowledgment from the accused and, therefore, the claim of the complainant became time-barred and, as such,the trial Court had rightly acquitted the accused.
6. Learned Advocate for the complainant do not agree with this submission on the ground that the plea for time-barred debt was not taken before the trial Court while cross-examining witness of the complainant and even otherwise there was no bar of limitation, considering that the complainant is society carrying on business of banking in accordance with law. According to learned Advocate for the appellant, the period of limitation to recover loan by banking society would be 12- years in order to recover such loan.
7. Be that as it may; after having perused the impugned judgment and order in the light of submissions advanced at the Bar, I think the points for determination ought to have involved at least five ingredients, which were laid down by the Apex Court in the case of Kusum Ingots and Alloys Ltd. vs. Pennar Peterson Securities Ltd.: (2002 ) 2 SCC 745. They are as follows :-
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"(i) A person must have drawn a cheque on an account maintained by him in a Bank for payment of certain amount of money to another person from out of that account for the discharge of any legally enforceable debt or other liability.
(ii) that cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the Bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the Bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the Bank regarding return of the cheque as unpaid.
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 30 days of the receipt of such notice."
8. The points to be framed for determination ought to be framed in such a manner that findings are recorded on all the above ingredients necessary to make an act an offence punishable under section 138 of the 5
Negotiable Instruments Act, (in short "the N.I. Act"). While deciding criminal liability of the accused statutory presumption available under section 139 of the N.I. Act in favour of holder can not be ignored as also presumption u/s 118 of the Act, apart from penal provisions contained in Sec. 138 of the N.I. Act. Prima facie, once the cheque is issued for discharge of legal liability and if it is dishonoured on presentation, the accused becomes liable under section 138 of the N I Act. The statutory presumption in favour of holder that the cheque has been issued for discharge of debt or liability cannot be ignored, of course, existence of legally recoverable debt is not a matter of presumption u/s 139 of the N I Act. The trial Court, is, therefore, expected to address itself on all the above ingredients before it can dismiss the complaint or acquit the accused or if it holds guilty the accused of the offence punishable u/s 138 of the N I Act. The defense of the accused has to be a specific as to why the cheque was issued. If it was issued for the purpose of security or any other purpose and not to discharge any debt or liability then only the trial Court may be justified to hold that the cheque issued did not come within the purview of the Section 138 of the N.I .Act.
9. Considering the submissions at the Bar as also rulings which learned Advocate has pointed out to state that time barred the debt cannot be recovered in view of the ruling in M/s Vijay Polymers (Pvt) ltd. And another vs. Vinnay Aggarwal : 2009 (4) Crimes Page 29 (Delhi) High Court as also ruling in Kamalaksha Laxman Prabhu vs. S.G.Mayekar : 2009 (1) 6
Crimes page 195 (Bom) can be considered by the trial Court after giving opportunity to the parties to adduce evidence on all above ingredients mentioned in Kusum Ingot's case ( supra). The learned trial Court is also expected to cover all these points while framing questions for determination which were not framed in this case nor there was a detailed discussion in respect of those ingredients. Even the rulings were simply listed by the trial Court without going into the ratio decidendi of the same. For all these reasons, the impugned judgment and order of acquittal is set aside with direction to the learned trial Magistrate to hear the parties giving them full opportunity to adduce evidence in support of their rival contentions on the basis of points for determination as mentioned in Kusum Ingot's case and then to decide the case in accordance with law bearing in mind the observations made above. The parties to appear before the trial Court on 15th February,2010. Order accordingly
JUDGE
sahare
Print Page
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Bombay High Court
Adarsh Gramin Sahakari Pat ... vs Shri Dattu Ramdasji Paithankar on 12 January, 2010
Bench: A.P. Bhangale
JUDGMENT : 1. This Appeal stems from judgment and order in Summary Criminal Case No. 13625/2006 decided on 13th February, 2009 by learned Judicial Magistrate, First Class, cum Special Court u/s 138 of the Negotiable Instruments Act, 1938, at Nagpur.
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2. With the consent of respective counsel, the Appeal is taken up for final hearing. Heard submissions of the respective counsel appearing for the parties, at length.
3. It is the grievance of the learned Advocate for the appellant that the trial Court dismissed the Criminal Complaint filed by the appellant ( original complainant ) ignoring oral as well as documentary evidence on record and has failed to exercise its discretion in accordance with law. Learned Advocate on behalf of the appellant submitted that the trial Court utterly failed to consider the effect of statutory presumption available in respect of the cheque issued from the accused pursuant to dishonour of the same.
4. It is the case of the complainant that the accused had taken loan in the sum of Rs.10,000/-, which he was bound to repay, of course, with interest. The amount due from the accused was in the sum of Rs.22,745/- in respect of which he had issued a cheque bearing No. 514034 on 20th April, 2006 which was presented by the complainant for collection but it came to be returned dishonoured with remarks "insufficient funds". After receiving intimation of dishonour on or about 21st April, 2006, the complainant had issued notice demanding the payment by notice dated 4.5.2006 which, according to the complainant, was received by the accused on 9.5.2006; however, since accused failed to comply with the notice, the complaint was filed on 23rd June, 2006. It is the further contention of the complainant that the trial Court ought to have considered the documentary evidence in the 3
light of statutory presumptions available in respect thereof before deciding the case but, according to learned Advocate for complainant, the trial Court ignored the legal provisions as well as facts and circumstances of the case.
5. Learned Advocate appearing on behalf of the accused/respondent advanced his submission in support of the judgment and order of acquittal to argue that even otherwise the loan was granted in the year 2000 and the complainant did not obtain written acknowledgment from the accused and, therefore, the claim of the complainant became time-barred and, as such,the trial Court had rightly acquitted the accused.
6. Learned Advocate for the complainant do not agree with this submission on the ground that the plea for time-barred debt was not taken before the trial Court while cross-examining witness of the complainant and even otherwise there was no bar of limitation, considering that the complainant is society carrying on business of banking in accordance with law. According to learned Advocate for the appellant, the period of limitation to recover loan by banking society would be 12- years in order to recover such loan.
7. Be that as it may; after having perused the impugned judgment and order in the light of submissions advanced at the Bar, I think the points for determination ought to have involved at least five ingredients, which were laid down by the Apex Court in the case of Kusum Ingots and Alloys Ltd. vs. Pennar Peterson Securities Ltd.: (2002 ) 2 SCC 745. They are as follows :-
4
"(i) A person must have drawn a cheque on an account maintained by him in a Bank for payment of certain amount of money to another person from out of that account for the discharge of any legally enforceable debt or other liability.
(ii) that cheque has been presented to the Bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(iii) that cheque is returned by the Bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the Bank;
(iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque within 15 days of the receipt of the information by him from the Bank regarding return of the cheque as unpaid.
(v) the drawer of such cheque fails to make payment of the said amount of money to the payee or the holder in due course of the cheque within 30 days of the receipt of such notice."
8. The points to be framed for determination ought to be framed in such a manner that findings are recorded on all the above ingredients necessary to make an act an offence punishable under section 138 of the 5
Negotiable Instruments Act, (in short "the N.I. Act"). While deciding criminal liability of the accused statutory presumption available under section 139 of the N.I. Act in favour of holder can not be ignored as also presumption u/s 118 of the Act, apart from penal provisions contained in Sec. 138 of the N.I. Act. Prima facie, once the cheque is issued for discharge of legal liability and if it is dishonoured on presentation, the accused becomes liable under section 138 of the N I Act. The statutory presumption in favour of holder that the cheque has been issued for discharge of debt or liability cannot be ignored, of course, existence of legally recoverable debt is not a matter of presumption u/s 139 of the N I Act. The trial Court, is, therefore, expected to address itself on all the above ingredients before it can dismiss the complaint or acquit the accused or if it holds guilty the accused of the offence punishable u/s 138 of the N I Act. The defense of the accused has to be a specific as to why the cheque was issued. If it was issued for the purpose of security or any other purpose and not to discharge any debt or liability then only the trial Court may be justified to hold that the cheque issued did not come within the purview of the Section 138 of the N.I .Act.
9. Considering the submissions at the Bar as also rulings which learned Advocate has pointed out to state that time barred the debt cannot be recovered in view of the ruling in M/s Vijay Polymers (Pvt) ltd. And another vs. Vinnay Aggarwal : 2009 (4) Crimes Page 29 (Delhi) High Court as also ruling in Kamalaksha Laxman Prabhu vs. S.G.Mayekar : 2009 (1) 6
Crimes page 195 (Bom) can be considered by the trial Court after giving opportunity to the parties to adduce evidence on all above ingredients mentioned in Kusum Ingot's case ( supra). The learned trial Court is also expected to cover all these points while framing questions for determination which were not framed in this case nor there was a detailed discussion in respect of those ingredients. Even the rulings were simply listed by the trial Court without going into the ratio decidendi of the same. For all these reasons, the impugned judgment and order of acquittal is set aside with direction to the learned trial Magistrate to hear the parties giving them full opportunity to adduce evidence in support of their rival contentions on the basis of points for determination as mentioned in Kusum Ingot's case and then to decide the case in accordance with law bearing in mind the observations made above. The parties to appear before the trial Court on 15th February,2010. Order accordingly
JUDGE
sahare
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