Case Note & Summary
The appellant, Smt. Tasneem Murshedkar Mazhar, was the original complainant in a summary criminal case under Section 138 of the Negotiable Instruments Act, 1881, against respondent no.1, Ramesh Dhanraj Mahajan. The appellant claimed that between 1997-1998, she gave a loan of Rs.4,50,000/- to the respondent, who issued a cheque dated 26th November 1998 for the same amount. The cheque was dishonoured with the endorsement 'not arranged for'. A statutory notice was sent on 10th December 1998, and a reply was received. The complaint was lodged. The Trial Court, after considering evidence, acquitted the accused on 22nd July 2003, holding that the complainant failed to prove a legally enforceable debt. The appellant appealed. The High Court noted that the accused was not represented, and the appellant was absent. The court appointed an amicus curiae. The defence argued that the accused did not know the complainant, and the loan was false. It was claimed that one Sanjay Alizar (Jain), a business partner of the accused, had taken a blank signed cheque from the accused in May 1997 for a transaction with a third party, and disputes arose between them. The High Court examined the evidence and found that the complainant did not prove the loan transaction. The court held that the presumption under Section 139 of the Act was rebutted by the defence. The appeal was dismissed, and the acquittal was confirmed.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Legally Enforceable Debt - The complainant alleged loan of Rs.4,50,000/- to accused but failed to prove the loan transaction. The defence contended that the cheque was a blank signed cheque misused by a third party. The Trial Court acquitted accused. On appeal, the High Court held that the complainant did not discharge the burden to prove legally enforceable debt, and the presumption under Section 139 was rebutted. Appeal dismissed. (Paras 1-8)
Issue of Consideration
Whether the complainant proved that there was a legally enforceable debt or liability to sustain conviction under Section 138 of the Negotiable Instruments Act, 1881
Final Decision
Appeal dismissed. The order and judgment of acquittal passed by the Trial Court is confirmed.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881 is rebuttable
- burden on complainant to prove legally enforceable debt
- failure to prove loan transaction leads to acquittal
Case Details
2020 LawText (BOM) (01) 74
Criminal Appeal No.1033 of 2003
Mr. Rohan Sawant (Amicus Curiae), Ms. Pallavi Dabholkar (APP for State)
Smt. Tasneem Murshedkar Mazhar
Shri Ramesh S/o. Dhanraj Mahajan and The State of Maharashtra
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Nature of Litigation
Appeal against acquittal in a complaint under Section 138 of Negotiable Instruments Act, 1881 for dishonour of cheque
Remedy Sought
Appellant sought conviction of respondent no.1 for offence under Section 138 of Negotiable Instruments Act, 1881
Filing Reason
Cheque of Rs.4,50,000/- issued by respondent no.1 was dishonoured; statutory notice was sent but payment not made
Previous Decisions
Trial Court acquitted accused by order and judgment dated 22nd July 2003 in Summary Criminal Case No.76 of 1999
Issues
Whether the complainant proved that there was a legally enforceable debt or liability to sustain conviction under Section 138 of the Negotiable Instruments Act, 1881
Submissions/Arguments
Appellant/complainant alleged loan of Rs.4,50,000/- to accused and dishonour of cheque
Defence contended accused did not know complainant, loan was false, and cheque was a blank signed cheque misused by a third party Sanjay Alizar
Ratio Decidendi
The complainant failed to prove the existence of a legally enforceable debt or liability. The presumption under Section 139 of the Negotiable Instruments Act, 1881 was rebutted by the defence. Therefore, the acquittal was justified.
Judgment Excerpts
Appellant is the original complainant, who had filed summary criminal case no.76 of 1999 before the Judicial Magistrate First Class, Vashi, against respondent no.1 for commission of offence punishable under Section 138 (Dishonour of cheque for insufficiency, etc., of funds in the account) of the Negotiable Instruments Act, 1881 (the said Act).
The Trial Court after considering the evidence came to the conclusion that complainant has failed to prove that there was legally enforceable debt/liability and acquitted accused by an order and judgment dated 22nd July 2003, which is impugned in this appeal.
Procedural History
Complainant filed Summary Criminal Case No.76 of 1999 before Judicial Magistrate First Class, Vashi. Trial Court acquitted accused on 22nd July 2003. Complainant appealed to High Court by Criminal Appeal No.1033 of 2003. High Court dismissed appeal on 2nd January 2020.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
