Case Note & Summary
The appellant, Navneetdas Narayandas Barshikar, the original complainant, filed an appeal against the judgment and order of acquittal dated 16th August 2000 passed by the Judicial Magistrate (F.C.), Court No.3, Ahmednagar in Summary Criminal Case No. 1093/1998, acquitting the respondent, Bacchubhai Mulji Tanna, the original accused, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the accused purchased goods worth Rs. 2,00,000 from him on credit on 11th June 1996 and issued a cheque for Rs. 50,000 on 31st January 1998 towards part payment. The cheque was presented on 4th February 1998 but was dishonoured on 11th February 1998 due to insufficient funds. The complainant sent a notice on the same day by courier. The accused allegedly requested the complainant to present the cheque again, assuring that it would be honoured. The cheque was presented again on 17th February 1998 but was again dishonoured. The complainant then filed a complaint under Section 138 of the Act. The trial court acquitted the accused on the grounds that the complainant failed to prove a legally enforceable debt and that the notice was not sent within 15 days of the first dishonour. The High Court, in appeal, re-appreciated the evidence and found that the trial court had erred. The court noted that the cheque was presented again at the request of the accused, and the notice was sent after the second dishonour, which was valid. The court also held that the presumption under Section 139 of the Act that the cheque was issued for a legally enforceable debt was not rebutted by the accused. The High Court allowed the appeal, set aside the acquittal, and convicted the accused under Section 138 of the Act, sentencing him to pay a fine of Rs. 75,000, with Rs. 70,000 to be paid as compensation to the complainant.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Presumption of Debt - The complainant alleged that the accused issued a cheque for Rs. 50,000 towards part payment of goods purchased. The cheque was dishonoured twice due to insufficient funds. The trial court acquitted the accused on the ground that the complainant failed to prove a legally enforceable debt and that the notice was not sent within 15 days of the first dishonour. The High Court held that the trial court erred in not considering the second presentation and the accused's assurance, and that the presumption under Section 139 of the Act was not rebutted. The appeal was allowed and the accused was convicted. (Paras 1-15) B) Negotiable Instruments Act - Notice of Dishonour - Section 138 Proviso (b) - The trial court held that the notice was not sent within 15 days of the first dishonour. However, the High Court noted that the cheque was presented again at the request of the accused, and the notice was sent after the second dishonour. The court held that the requirement of notice within 15 days applies to the dishonour on which the complaint is based, and here the complaint was based on the second dishonour. Hence, the notice was valid. (Paras 10-12)
Issue of Consideration
Whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 was justified given the evidence on record, particularly regarding the second presentation of the cheque and the notice period.
Final Decision
The High Court allowed the appeal, set aside the judgment of acquittal, and convicted the accused under Section 138 of the Negotiable Instruments Act, 1881. The accused was sentenced to pay a fine of Rs. 75,000, in default to undergo simple imprisonment for three months. Out of the fine, Rs. 70,000 was ordered to be paid as compensation to the complainant.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- presumption of legally enforceable debt
- burden of proof
- re-appreciation of evidence in acquittal appeal
- requirement of notice within 15 days
- second presentation of cheque
