Case Note & Summary
The present appeal was preferred by the original complainant against the judgment and order dated 8th July, 1999 passed by the learned Additional Chief Metropolitan Magistrate, IV Court, Girgaum, Mumbai in Case No. 103/S/1993. The trial court allowed the application filed by respondent Nos.1 to 3 (original accused Nos.1 to 3) for dismissal of the complaint under Section 138 of the Negotiable Instruments Act and for their acquittal. The brief facts are that five cheques were issued by the accused in favour of the complainant, including three cheques dated 30th December, 1992 for Rs.3,30,000/-, 30th January, 1993 for Rs.2,50,000/- and 28th February, 1993 for Rs.2,50,000/-. All the cheques were dishonoured. A statutory demand notice was issued by the complainant on 14th May, 1993 to the accused. The accused requested the complainant to wait. The trial court dismissed the complaint as the complainant and his counsel remained absent. The High Court, after hearing the amicus curiae for the appellant and the counsel for the respondents, set aside the impugned judgment and remanded the case back to the trial court for fresh consideration on merits, directing the parties to appear before the trial court on 10th October, 2016.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Acquittal Set Aside - The trial court dismissed the complaint and acquitted the accused without examining the merits, as the complainant and his counsel remained absent. The High Court held that the dismissal was not justified and remanded the case for fresh consideration on merits. (Paras 1-5)
Issue of Consideration
Whether the trial court was justified in dismissing the complaint under Section 138 of the Negotiable Instruments Act and acquitting the accused without considering the merits of the case.
Final Decision
The appeal is allowed. The impugned judgment and order dated 8th July, 1999 passed by the learned Additional Chief Metropolitan Magistrate, IV Court, Girgaum, Mumbai in Case No. 103/S/1993 is set aside. The case is remanded back to the trial court for fresh consideration on merits. The parties are directed to appear before the trial court on 10th October, 2016.
Law Points
- Section 138 Negotiable Instruments Act
- 1881
- Dishonour of Cheque
- Statutory Demand Notice
- Acquittal Set Aside
- Remand for Fresh Consideration
Case Details
2016 LawText (BOM) (09) 79
Criminal Appeal No.448 of 1999
Mr. Yashpal Thakur (Amicus Curiae for appellant), Mr. Abdul Kader Millwala (for respondent Nos.1 to 3), Mrs. A.A. Takalkar (APP for respondent State)
M/s. Ramdil Resorts P. Ltd., Dilip J. Doshi, Smt. Ramola D. Doshi, State of Maharashtra
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Nature of Litigation
Criminal appeal against acquittal in a cheque dishonour case under Section 138 of the Negotiable Instruments Act.
Remedy Sought
The appellant (original complainant) sought setting aside of the trial court's order dismissing the complaint and acquitting the accused.
Filing Reason
The trial court dismissed the complaint and acquitted the accused without considering the merits, as the complainant and his counsel remained absent.
Previous Decisions
The trial court (Additional Chief Metropolitan Magistrate, IV Court, Girgaum, Mumbai) allowed the application of the accused for dismissal of the complaint under Section 138 of the Negotiable Instruments Act and acquitted them on 8th July, 1999.
Issues
Whether the trial court was justified in dismissing the complaint under Section 138 of the Negotiable Instruments Act and acquitting the accused without considering the merits of the case.
Submissions/Arguments
The appellant's counsel (amicus curiae) argued that the trial court erred in dismissing the complaint without considering the merits.
The respondents' counsel supported the trial court's order.
Ratio Decidendi
The trial court's dismissal of the complaint and acquittal of the accused without examining the merits of the case was not justified. The case must be remanded for fresh consideration on merits.
Judgment Excerpts
The present appeal has been preferred by the original complainant against the judgment and order dated 8th July, 1999 in Case No. 103/S/1993 passed by the learned Additional Chief Metropolitan Magistrate, IV Court, Girgaum, Mumbai thereby allowing the application filed by respondent Nos.1 to 3 / original accused Nos.1 to 3 for dismissal of the complaint under section 138 of the Negotiable Instruments Act and for their acquittal.
Procedural History
The original complaint was filed under Section 138 of the Negotiable Instruments Act. The trial court dismissed the complaint and acquitted the accused on 8th July, 1999. The complainant appealed to the High Court of Bombay, which set aside the acquittal and remanded the case for fresh consideration.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
