Case Note & Summary
The case involves a criminal revision application filed by M/s Reshmi Constructions, a partnership firm, against the acquittal of Laxman Vithal Chunekar in a complaint under Section 138 of the Negotiable Instruments Act, 1881. The complainant alleged that the accused issued a cheque for Rs. 1,20,000 towards refund of excess amount received under an agreement dated 07/11/1996. The cheque was dishonoured due to insufficient funds. The complainant issued a legal notice, but the accused did not pay. The trial court acquitted the accused on the ground that the complainant failed to prove that the cheque was issued for a legally enforceable debt or liability, as the partner who had personal knowledge of the transaction was not examined. The High Court upheld the acquittal, holding that the presumption under Section 139 of the N.I. Act was rebutted by the accused's denial and the complainant's failure to examine the material witness. The court also noted that the revisional court cannot interfere with an acquittal unless there is perversity or manifest error, which was absent.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Legally Enforceable Debt - The complainant must prove that the cheque was issued for a legally enforceable debt or liability. In the absence of examination of the partner who had personal knowledge of the transaction, the complainant fails to discharge its burden. The presumption under Section 139 is rebuttable and stands rebutted if the accused raises a probable defence. (Paras 6-10)
B) Negotiable Instruments Act - Presumption under Section 139 - Rebuttal - The accused can rebut the presumption by raising a probable defence. In this case, the accused denied liability and the complainant did not examine the partner who had personal knowledge, leaving the defence unrebutted. (Paras 7-10)
C) Criminal Procedure Code - Appeal against Acquittal - Section 378 - Scope of Revision - The revisional court cannot interfere with an acquittal unless there is a manifest error of law or perversity. The trial court's findings were based on evidence and not perverse. (Paras 11-12)
Issue of Consideration
Whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 was justified when the complainant partnership firm failed to examine its partner who had personal knowledge of the transaction, and whether the presumption under Section 139 of the Act stood rebutted.
Final Decision
The High Court dismissed the revision application and upheld the acquittal of the accused. The court held that the complainant failed to prove that the cheque was issued for a legally enforceable debt or liability, and the presumption under Section 139 was rebutted.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- legally enforceable debt or liability
- presumption under Section 139
- rebuttal of presumption
- non-examination of complainant partner
- partnership firm complaint
- vicarious liability of partner
Case Details
2014 LawText (BOM) (04) 177
Criminal Revision Application No. 18 of 2014
Mr. A. R. Kantak for applicant, Mr. Siddhesh Shet (Amicus Curiae) for respondent no.1, Ms. M. Gomes Pinto (Additional Public Prosecutor) for respondent no.2
Shri Laxman Vithal Chunekar
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Nature of Litigation
Criminal revision application against acquittal in a complaint under Section 138 of the Negotiable Instruments Act, 1881.
Remedy Sought
The applicant (original complainant) sought reversal of the acquittal of the accused and conviction under Section 138 of the N.I. Act.
Filing Reason
The complainant alleged that the accused issued a cheque for Rs. 1,20,000 which was dishonoured due to insufficient funds, and the accused failed to pay despite legal notice.
Previous Decisions
The trial court (Judicial Magistrate, First Class, Ponda) acquitted the accused by judgment dated 15/05/2009 in Criminal Case No.211/OA/2006/B.
Issues
Whether the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881 was justified when the complainant partnership firm failed to examine its partner who had personal knowledge of the transaction.
Whether the presumption under Section 139 of the N.I. Act stood rebutted by the accused's defence.
Submissions/Arguments
The applicant argued that the trial court erred in acquitting the accused as the presumption under Section 139 of the N.I. Act was not rebutted.
The respondent (accused) argued that the complainant failed to prove the existence of a legally enforceable debt or liability, and the partner with personal knowledge was not examined.
Ratio Decidendi
In a complaint under Section 138 of the Negotiable Instruments Act, the complainant must prove that the cheque was issued for a legally enforceable debt or liability. The presumption under Section 139 is rebuttable, and if the accused raises a probable defence and the complainant fails to examine a material witness (such as the partner with personal knowledge), the presumption stands rebutted. The revisional court cannot interfere with an acquittal unless there is perversity or manifest error.
Judgment Excerpts
The complainant, the Partnership Firm represented by its partner, namely Shri Pandharinath Chafadkar, had filed the complaint under Section 138 of the Negotiable Instruments Act, 1881, ('N. I. Act') against the accused.
When the said cheque was presented to the banker of the complainant for collection, it was returned back unpaid with the remark 'funds insufficient'.
The trial court acquitted the accused on the ground that the complainant failed to prove that the cheque was issued for a legally enforceable debt or liability.
The revisional court cannot interfere with an acquittal unless there is a manifest error of law or perversity.
Procedural History
The complainant filed a complaint under Section 138 of the N.I. Act before the Judicial Magistrate, First Class, Ponda, which was registered as Criminal Case No.211/OA/2006/B. The trial court acquitted the accused on 15/05/2009. The complainant initially filed Criminal Appeal No.81/2009, which was later converted into Criminal Revision Application No.18/2014. The revision was admitted on 16/11/2009 and heard finally on 02/04/2014.
Acts & Sections
- Negotiable Instruments Act, 1881: 138, 139
- Code of Criminal Procedure, 1973: 378
