Bom HC: Complainant in cheque dishonour case can not file appeal in session court

“Whether the appeal against acquittal in prosecution
for the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881, would lie under
Section 378(4) of the Code of Criminal Procedure or
would be as per proviso below Section 372 of the
Code of Criminal Procedure ?”
Answer : The appeal against acquittal in prosecution for the
offence punishable under Section 138 of the Negotiable
Instruments Act, 1881, would lie under Section 378(4) of the
Code of Criminal Procedure.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 201 OF 2018.

Kushal Kawaduji Singanjude Vs Ramnarayan Durgaprasad Agrawal (Kejadiwal),

CORAM : P.N. DESHMUKH &
PUSHPA V. GANEDIWALA JJ.

DATED : AUGUST 23, 2019.
(PER PUSHPA V. GANEDIWALA, J.)
Citation: 2020(1) MHLJ 748

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Whether dishonour of electronic fund transfer is punishable offence?

 Payment and Settlement Systems Act, 2007 

25. Dishonour of electronic funds transfer for insufficiency, etc., of funds in the account. –

1.     Where an electronic funds transfer initiated by a person from an account maintained by him cannot be executed on the ground that the amount of money standing to the credit of that account is insufficient to honour the transfer instruction or that it exceeds the amount arranged to be paid from that account by an agreement made with a bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the electronic funds transfer, or with both: Provided that nothing contained in this section shall apply unless-

a.     the electronic funds transfer was initiated for payment of any amount of money to another person for the discharge, in whole or in part, of any debt or other liability;

b.    the electronic funds transfer was initiated in accordance with the relevant procedural guidelines issued by the system provider;

c.     the beneficiary makes a demand for the payment of the said amount of money by giving a notice in writing to the person initiating the electronic funds transfer within thirty days of the receipt of information by him from the bank concerned regarding the dishonour of the electronic funds transfer; and

d.    the person initiating the electronic funds transfer fails to make the payment of the said money to the beneficiary within fifteen days of the receipt of the said notice.

2.     It shall be presumed, unless the contrary is proved, that the electronic funds transfer was initiated for the discharge, in whole or in part, of any debt or other liability.

3.     It shall not be a defence in a prosecution for an offence under sub-section (1) that the person, who initiated the electronic funds transfer through an instruction, authorisation, order or agreement, did not have reason to believe at the time of such instruction, authorisation, order or agreement that the credit of his account is insufficient to effect the electronic funds transfer.

4.     The Court shall, in respect of every proceeding under this section, on production of a communication from the bank denoting the dishonour of electronic funds transfer, presume the fact of dishonour of such electronic funds transfer, unless and until such fact is disproved.

5.     The provisions of Chapter XVII of the Negotiable Instruments Act, 1881 shall apply to the dishonour of electronic funds transfer to the extent the circumstances admit.

Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability, as the case may be.

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Whether cross objection filed by one respondent against other respondent is maintainable?

The Apex Court observed in Panna Lal Vs. State of Bombay MANU/SC/0240/1963 : AIR 1963 SC 1516

(C) In our opinion, the view that has now been accepted by all the High Courts that O.41 R. 22 permits as a general rule, a respondent to prefer an objection directed only against the appellant and it is only in exceptional cases, such as where the relief sought against the appellant in such an objection is intermixed with the relief granted to the other respondents, so that the relief against the appellant cannot be granted without the question being reopened between the objecting respondent and other respondents, that an objection under O.41 R. 22 can be directed against the other respondents, is correct.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Civil Application No. 13940 of 2017, 

Decided On: 19.12.2018

Chhagan Trimbak Lokhande Vs. Dattatraya Krishna Patil and Ors.

Hon'ble Judges/Coram:

A.M. Dhavale, J.

Citation: 2019(3) MHLJ 780

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Whether cross objection is maintainable if appeal is not maintainable?

Right of appeal is creature of statute. There is no inherent right of appeal. No appeal can be filed, heard or determined on merits unless the statute confers right on the appellant and power on the Court to do so. Section 39 of the Act confers right to file appeal, in so far as the orders passed under this Act are concerned, only against such of the orders as fall within one or other of the descriptions give in Clauses (i) to (vi) of Sub-section (1) of Section 39. The Parliament has taken care to specifically exclude any other appeal being filed, against any order passed under the Act but not covered by Clauses (i) to (vi) above said, by inserting the expression "and from no others" in the text of Sub-section (1). Clause (a) of Section 41 extends applicability of all the provisions contained in the Code of Civil Procedure, 1908 to (i) all proceedings before the Court under the Act, and (ii) to all the appeals, under the Act. However, the applicability of such of the provisions of the Code of Civil Procedure shall be excluded as may be inconsistent with the provisions of the Act and/or of rules made there under. A bare reading of these provisions show that in all the appeals filed under Section 39, the provisions of the Code of Civil Procedure, 1908 would be applicable. This would include the applicability of Order 41 including the right to take any cross objection under Rule 22 thereof to appeals under Section 39 of the Act.

15. Right to prefer cross objection pertakes of the right to prefer an appeal. When the impugned decree or order is partly in favour of one party and partly in favour of the other, one party may rest contended by his partial success with a jew to giving a quietus to the litigation. However, he may like to exercise his right of appeal if he finds that the other party was not interested in burying the hatchet and proposed to keep the (sic) alive by pursuing the same before the appellate forum. He too may in such circumstances exercise his right to file appeal by taking cross objection. Thus taking any cross objection to the decree or order impugned is the exercise of right of appeal though such right is exercised in the form of taking cross objection. The substantive right is the right of appeal; the form of cross objection is a matter of procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1062 and 1063/2003

Decided On: 06.02.2003

 Municipal Corporation of Delhi Vs.  Intnl. Security & Intelligence Agency Ltd.

Hon'ble Judges/Coram:

R.C. Lahoti, Brijesh Kumar and Dr. Arijit Pasayat, JJ.

Citation: MANU/SC/0091/2003 : AIR 2003 SC 1515.

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