Case Note & Summary
The appellant, a co-operative society registered under the Maharashtra Co-operative Societies Act, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881, against the respondent-accused for dishonour of a cheque for Rs. 1,00,000 issued towards repayment of a loan. The trial court acquitted the accused on the ground that the complainant society was not a 'company' and thus could not maintain the complaint, and also that the loan was time-barred. The High Court allowed the appeal, holding that a co-operative society is a 'body corporate' and falls within the definition of 'company' under Section 141 of the NI Act, and thus can maintain a complaint. The court further held that the presumption under Section 139 of the NI Act was not rebutted by the accused, and the defence of limitation was not raised before the trial court. The acquittal was set aside and the accused was convicted under Section 138 of the NI Act, with a sentence of simple imprisonment for one year and a fine of Rs. 1,50,000.
Headnote
A) Negotiable Instruments Act - Section 138 - Dishonour of Cheque - Maintainability of Complaint by Co-operative Society - A co-operative society registered under the Maharashtra Co-operative Societies Act is a 'body corporate' and can maintain a complaint under Section 138 of the Negotiable Instruments Act, 1881, as it is a 'company' within the meaning of Section 141 of the Act - The court held that the society can file a complaint through its authorised representative (Paras 6-8). B) Negotiable Instruments Act - Section 138 - Dishonour of Cheque - Presumption under Section 139 - Rebuttal - The accused failed to rebut the presumption that the cheque was issued for discharge of a debt or liability - The defence of loan being time-barred was not raised before the trial court and cannot be considered in appeal - Held that the acquittal was perverse and liable to be set aside (Paras 9-12).
Issue of Consideration
Whether a co-operative society registered under the Maharashtra Co-operative Societies Act can maintain a complaint under Section 138 of the Negotiable Instruments Act, 1881, and whether the acquittal of the accused was proper.
Final Decision
Appeal allowed. The judgment of acquittal dated 22.12.2012 is set aside. The respondent-accused is convicted under Section 138 of the Negotiable Instruments Act, 1881 and sentenced to simple imprisonment for one year and to pay a fine of Rs. 1,50,000, in default to undergo further simple imprisonment for three months.
Law Points
- Co-operative society can maintain complaint under Section 138 of Negotiable Instruments Act
- 1881
- Acquittal set aside due to improper appreciation of evidence
- Presumption under Section 139 of NI Act not rebutted
