Case Note & Summary
The appellant, Maharashtra Co-operative Marketing Federation, a co-operative society registered under the Maharashtra State Co-operative Societies Act, 1960, filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 against respondent no.1, Sujit Bhaskar Munginwar, for dishonour of a cheque for Rs.2,23,547/- issued towards payment for fertilizers purchased. The cheque was dishonoured due to insufficient funds. The appellant issued a statutory notice, but the respondent failed to pay. The trial court, by order dated 09/09/2009 in Criminal Case No.1775/2002, dismissed the complaint and rejected the appellant's application to lead secondary evidence (Exhibit 52) while allowing the respondent's application for dismissal of the complaint (Exhibit 59), thereby acquitting the respondent. The appellant appealed. The High Court noted that the original cheque was lost, and the appellant sought to lead secondary evidence. The trial court had dismissed the complaint without giving the appellant an opportunity to lead secondary evidence. The High Court held that the dismissal was premature and that the appellant should have been permitted to lead secondary evidence. The appeal was allowed, the impugned order was set aside, and the matter was remanded to the trial court for fresh trial, with a direction to permit the appellant to lead secondary evidence and proceed in accordance with law.
Headnote
A) Criminal Procedure - Appeal against acquittal - Section 138 Negotiable Instruments Act, 1881 - Dismissal of complaint - The appellant-complainant challenged the order dismissing its complaint under Section 138 of the Negotiable Instruments Act, 1881 and rejecting its application to lead secondary evidence. The High Court held that the trial court erred in dismissing the complaint without giving the complainant an opportunity to lead secondary evidence, as the original cheque was lost. The appeal was allowed, the impugned order was set aside, and the matter was remanded for fresh trial. (Paras 2-9)
B) Evidence Law - Secondary evidence - Section 65 Indian Evidence Act, 1872 - Loss of original document - The complainant sought to lead secondary evidence of the cheque after the original was lost. The trial court rejected the application. The High Court held that the complainant should have been permitted to lead secondary evidence, and the dismissal of the complaint was premature. The matter was remanded to the trial court to allow the complainant to lead secondary evidence and proceed afresh. (Paras 5-9)
Issue of Consideration
Whether the trial court erred in dismissing the complaint and rejecting the application to lead secondary evidence when the original cheque was lost, and whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 was proper.
Final Decision
The High Court allowed the appeal, set aside the impugned order dated 09/09/2009 passed by the Judicial Magistrate, First Class, Yavatmal in Criminal Case No.1775/2002, and remanded the matter back to the trial court for fresh trial. The trial court was directed to permit the appellant to lead secondary evidence and to proceed with the case in accordance with law.
Law Points
- Secondary evidence
- Section 65 Indian Evidence Act
- 1872
- Section 138 Negotiable Instruments Act
- 1881
- Dismissal of complaint
- Opportunity to lead evidence
- Remand for fresh trial
Case Details
2022 LawText (BOM) (09) 157
Criminal Application (APPA) No.243/2021 in Criminal Appeal No.628/2022
Shri P.D. Meghe for appellant, Shri Ajay Shende for respondent
Maharashtra Co-operative Marketing Federation
Sujit s/o Bhaskar Munginwar, The State of Maharashtra
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Nature of Litigation
Criminal appeal against acquittal in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The appellant sought to set aside the trial court's order dismissing its complaint and rejecting its application to lead secondary evidence, and to convict the respondent for the offence under Section 138 of the Negotiable Instruments Act, 1881.
Filing Reason
The appellant's cheque for Rs.2,23,547/- issued by the respondent was dishonoured due to insufficient funds, and the respondent failed to pay despite statutory notice.
Previous Decisions
The Judicial Magistrate, First Class, Yavatmal, by order dated 09/09/2009 in Criminal Case No.1775/2002, dismissed the complaint, rejected the appellant's application to lead secondary evidence (Exhibit 52), allowed the respondent's application for dismissal (Exhibit 59), and acquitted the respondent.
Issues
Whether the trial court erred in dismissing the complaint under Section 138 of the Negotiable Instruments Act, 1881 without permitting the complainant to lead secondary evidence when the original cheque was lost.
Whether the acquittal of the accused was proper in the absence of consideration of secondary evidence.
Submissions/Arguments
The appellant argued that the trial court erred in dismissing the complaint and rejecting the application to lead secondary evidence, as the original cheque was lost and secondary evidence was permissible under Section 65 of the Indian Evidence Act, 1872.
The respondent argued that the trial court's order was correct and the appeal should be dismissed.
Ratio Decidendi
The trial court erred in dismissing the complaint under Section 138 of the Negotiable Instruments Act, 1881 without giving the complainant an opportunity to lead secondary evidence when the original cheque was lost. The dismissal was premature, and the matter must be remanded for fresh trial after permitting secondary evidence.
Judgment Excerpts
Leave granted.
The present appeal is filed being aggrieved by the order dated 09/09/2009 in Criminal Case No.1775/2002 passed below Exhibit 1, Exhibit 52 and Exhibit 59 by the Judicial Magistrate, First Class, Yavatmal, thereby dismissing the complaint of respondent no.1 and also the application of appellant to lead secondary evidence and allowing the application of respondent no.1 for dismissal of complaint, thereby respondent no.1 is being acquitted for the offence punishable under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881.
Procedural History
The appellant filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent in Criminal Case No.1775/2002 before the Judicial Magistrate, First Class, Yavatmal. The trial court, by order dated 09/09/2009, dismissed the complaint, rejected the appellant's application to lead secondary evidence (Exhibit 52), allowed the respondent's application for dismissal (Exhibit 59), and acquitted the respondent. The appellant then filed Criminal Application (APPA) No.243/2021 in Criminal Appeal No.628/2022 before the High Court of Bombay, Nagpur Bench, which was heard and allowed on 21/09/2022.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 142
- Indian Evidence Act, 1872: 65
- Maharashtra State Co-operative Societies Act, 1960:
