Case Note & Summary
The appellant, Shantaram Namdeo Sathe, filed a criminal appeal under Section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order dated 19 April 1999 passed by the Judicial Magistrate, First Class, Pimpalgaon (B), which acquitted the respondent-accused, Shankar Bhaurao Boraste, of the offence under Section 138 of the Negotiable Instruments Act, 1881. The appellant was an agriculturist who sold grapes to the accused, a trader and exporter. The appellant alleged that the accused purchased grapes, paid a part of the amount, and issued a cheque dated 23 May 1997 for Rs.2 lakhs towards the balance. When the cheque was presented, it was returned unpaid due to stop payment instructions issued by the accused. Despite a legal notice dated 8 June 1997, the accused did not make payment, leading to the filing of a complaint on 5 July 1997. The accused admitted purchasing grapes but claimed that the cheque was given only as a security and that he had already paid the full amount of Rs.2,25,000 in three installments: Rs.25,000, Rs.1,85,000, and Rs.15,000 (the last paid to a third party on the appellant's instructions). The accused also stated that he had given a blank signed cheque without date or amount, and that the stop payment instructions were given on 12 September 1996, before the cheque date of 25 May 1997, indicating the claim was bogus. The trial court, after recording evidence, acquitted the accused, holding that the appellant failed to prove that the cheque was issued for a legally enforceable debt. In the appeal, the High Court noted that the appellant was absent despite notice. The court, with the assistance of the APP and counsel for the respondent, perused the records. The court observed that the accused had rebutted the presumption under Section 139 of the Negotiable Instruments Act by showing that the cheque was given as security and that payment had already been made. The court found that the trial court's findings were plausible and not perverse, and therefore, no interference was warranted. The appeal was dismissed, and the acquittal was upheld.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Rebuttal of Presumption - The complainant alleged that the accused issued a cheque for Rs.2 lakhs towards payment for grapes purchased, which was dishonoured due to stop payment instructions. The accused contended that the cheque was given as security and that he had already paid the full amount. The trial court acquitted the accused, holding that the complainant failed to prove that the cheque was issued for a legally enforceable debt. The High Court upheld the acquittal, finding that the accused had rebutted the presumption under Section 139 by showing that the cheque was a security and that payment had been made. (Paras 1-10) B) Criminal Procedure Code - Appeal Against Acquittal - Section 378 - Scope of Interference - The High Court reiterated that in an appeal against acquittal, the appellate court should not interfere unless the findings of the trial court are perverse or unreasonable. The court found that the trial court's appreciation of evidence was plausible and not perverse, and therefore dismissed the appeal. (Paras 1-10)
Issue of Consideration
Whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 was perverse and warranted interference in appeal under Section 378 of the Code of Criminal Procedure, 1973
Final Decision
The High Court dismissed the appeal and upheld the acquittal of the accused by the Judicial Magistrate, First Class, Pimpalgaon (B) dated 19 April 1999
Law Points
- Presumption under Section 139 of Negotiable Instruments Act is rebuttable
- burden shifts to accused to prove defence on preponderance of probabilities
- stop payment instructions do not automatically constitute offence if cheque was not issued for discharge of debt or liability
