Case Note & Summary
The appellant, Deepakrao Yadavrao Gudadhe, filed a criminal appeal challenging the judgment and order dated 5th April 2009 passed by the Judicial Magistrate, First Class, Amravati in Summary Criminal Case No. 4426 of 2004, whereby the respondent, Prashant Premsing Kachwe, was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The appellant had lent a hand loan of Rs. 60,000 to the respondent, who promised to repay within three months but failed. The respondent issued a post-dated cheque dated 15.7.2004 drawn on State Bank of India, Rajapeth Branch, Amravati for Rs. 60,000 in favour of the appellant towards discharge of the liability. The appellant deposited the cheque on the due date, but it was returned unpaid under memos dated 16.7.2004. The appellant issued a statutory notice dated 26.7.2004 which was duly served on the respondent, but the respondent did not reply or pay the amount. The trial court acquitted the respondent on the ground that the notice was not properly served. The High Court held that the notice was properly served as the respondent refused to accept it, and the respondent did not rebut the presumption under Section 139 of the Act. The court found that the appellant had proved all ingredients of Section 138, including the existence of a legally enforceable debt. The appeal was allowed, the acquittal was set aside, and the respondent was convicted and sentenced to simple imprisonment for three months and to pay compensation of Rs. 60,000 to the appellant, with default sentence of one month.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption of Liability - The appellant proved issuance of cheque for discharge of debt and its dishonour; respondent failed to rebut presumption under Section 139 - Held that the trial court erred in acquitting the respondent despite proper service of notice and absence of defence (Paras 1-5).
Issue of Consideration
Whether the acquittal of the respondent for offence under Section 138 of the Negotiable Instruments Act, 1881 was justified when the cheque was dishonoured and statutory notice was served but not replied to.
Final Decision
Appeal allowed. Impugned judgment and order of acquittal dated 5th April 2009 set aside. Respondent convicted for offence under Section 138 of Negotiable Instruments Act, 1881 and sentenced to simple imprisonment for three months and to pay compensation of Rs. 60,000 to appellant, in default simple imprisonment for one month.
Law Points
- Presumption under Section 139 of Negotiable Instruments Act
- 1881
- Service of notice under Section 138
- Dishonour of cheque
- Burden of proof on accused
