Case Note & Summary
The present criminal appeal arose from the acquittal of the respondent-accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The appellant-complainant was the proprietor of M/s Saibaba Investments, represented by her husband as power of attorney holder. The parties engaged in share and securities transactions, and as of 31.3.1996 an amount of Rs.4,46,595/- was outstanding. The accused allegedly issued a cheque for Rs.1,46,595/- dated 5.4.1996 towards part payment, while the balance was to be settled through sale of his house. The cheque, when presented, was dishonoured with the endorsement 'payment stopped by the drawer'. A demand notice was sent, but the accused denied liability, claimed the cheque was lost on 15.1.1996 and that he had instructed his bank to stop payment. The trial court, while finding that the cheque was indeed issued and dishonoured, dismissed the complaint on the ground that it was not maintainable as it was filed by the power of attorney holder without proper authorization from the proprietor-payee. The complainant appealed against this acquittal. The High Court was called upon to examine both the correctness of the trial court's finding on issuance and the maintainability question. The judgment, however, remains incomplete in the provided text, and the final decision is not recorded.
Issue of Consideration
Whether the trial court correctly held that the cheque was issued and dishonoured, attracting Section 138 of the Negotiable Instruments Act; whether the complaint was maintainable when filed by a power of attorney holder without specific authorization from the payee
Case Details
2012 LawText (BOM) (09) 137
Criminal Appeal No.126/2003
Shri Nitin Lalwani (h/f Shri Shyam Dewani) for appellant; Shri A. Sambhare (h/f Shri A.G. Gharote) for respondent no.1; Shri P.V. Bhoyar, APP for respondent no.2
Jyoti w/o Rajkumar Sahajwani (trading as M/s. Saibaba Investment through power of attorney holder Rajkumar Gopaldas Sahajwani)
Shri Sadhu s/o Safarmal Manjani and State of Maharashtra
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Nature of Litigation
Criminal appeal against acquittal in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The appellant-original complainant sought to set aside the acquittal and convict the respondent no.1 for the offence of cheque dishonour.
Filing Reason
The trial court dismissed the complaint as not maintainable because it was filed by a power of attorney holder without proper authorization from the payee, despite finding that the cheque was issued and dishonoured.
Previous Decisions
The Judicial Magistrate First Class, 7th Court, Nagpur, in Case No.630/1999, by judgment dated 2.1.2003, acquitted the accused, holding that the complaint was not maintainable, though it answered Point No.1 regarding issuance and dishonour of the cheque in the affirmative.
Issues
Whether the cheque in question was issued in discharge of a legally enforceable debt, attracting Section 138 of the Negotiable Instruments Act?
Whether the complaint filed by the power of attorney holder on behalf of the payee-firm is maintainable without specific authorization from the proprietor?
Submissions/Arguments
Appellant (complainant): The accused issued the cheque as part of mutual settlement for outstanding amount; the cheque was dishonoured; the trial court correctly found issuance but erred on maintainability.
Respondent (accused): The cheque was lost on 15.1.1996 and misused by complainant; the accused had informed the bank to stop payment; there was no legally enforceable debt; the acknowledgment documents are forged; the complaint was not maintainable due to lack of authorization; the finding on issuance was erroneous.
Judgment Excerpts
the trial Court though dismissed the complaint, it had taken a specific view, so far as the giving of the cheque to the complainant and liability of the present respondent/accused for payment towards dishonour of the said cheque, in the affirmative. The only point on which the entire complaint was dismissed was held as non-maintainability of the complaint as filed by the Power of Attorney Holder Shri Rajkumar Sahajwani for want of authorization from the sole proprietor of Saibaba Investments i.e. payee of the cheque.
the defence of respondent/accused is that the cheque in question was lost by him on 15.1.1996 and immediately on the next day he instructed his Banker to stop the payment and as such accordingly a note was taken in the Bank concerning the account of the respondent.
the trial Court had held that on 5.4.1996, the accused issued concerned cheque in favour of the complainant/firm and it was dishonoured as the payment was stopped by the drawer. According to the learned Counsel for the respondent/accused, this is erroneous finding...
Procedural History
Original complaint (Case No.630/1999) filed before JMFC, 7th Court, Nagpur under Section 138 NI Act. Trial court acquitted accused on 2.1.2003, holding complaint not maintainable despite finding issuance and dishonour in affirmative. Complainant filed Criminal Appeal No.126/2003 before High Court. Respondent had filed separate petition challenging trial court's finding on issuance but withdrew it with liberty to agitate in this appeal. Appeal heard; judgment reserved on 03.09.2012, pronounced on 13.09.2012.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 313
