After knowing the principles laid down in the various cases
as above, let us proceed to deal with the facts of the present
cases. It is pertinent to note that in the present cases, the
execution of the cheques has not been denied by the accused. On
account of the above, In view of the Section 139 of the N.I. Act,
there was presumption in favour of the complainant that said
cheques were issued in discharge of legally enforceable debt or
liability favouring the complainant and it was for the accused to
rebut the said presumption.
It is seen that though according to
the accused, letter dated 06.07.2005 and the subject cheques
were obtained from him by force or coercion, however, the
accused did not lodge any police complaint against the directors of
the complainant and others nor did he instruct his banker to stop
payment. The complainant had given
statutory notices to the
accused as required under Section 138(b) of the N.I. Act, and same
were served upon the accused though they were not accepted by
him and thus were returned “unclaimed” to the complainant. The
accused therefore is deemed to have
the statutory notices.
However, the accused did not reply the same. Adverse inference is
bound to be drawn as against the accused. Merely because in the
said letter dated 06.07.2005, it is mentioned that the same is in
the handwriting of the accused and that it is written without any
coercion or pressure of any one and that the accused had signed
the cheques on his own as matter of amicable settlement, that
cannot establish that there was coercion on the accused to sign
the letter. Such an observation of the learned J.M.F.C. is without
any basis. In fact, there was no reason for the accused not to lodge
any police complaint or not to instruct the bank to stop payment
and even there was no reason for the accused not to reply the
statutory notices. According to the accused, on 6.7.2005
around 10.00 a.m.,
he
was
called
along
with
the
at
cheque
books and other documents relating to Malax Traders in the office
of the complainant. The accused had not gone to the office of the
managing director on 06.07.2005 with the cheque books of Malax
Traders, but with his private cheque book or cheques. The coercion
or threatening had not started before the accused had gone to the
office. There was no reason at all for the accused to carry with him
his private cheque book or cheques. It should be kept in mind that
the accused had raised industrial dispute. In such circumstances,
it cannot be at all be said that the accused had successfully
discharged the initial reverse burden to show that the said cheques
were not issued towards the discharge of legally enforceable debt
or liability.
IN THE HIGH COURT OF BOMBAY AT GOA.
CRIMINAL APPEALS NO. 15, 16, 17, and 18 OF 2013.
CRIMINAL APPEAL NO. 15 OF 2013.
M/s. Agency Real Margao Pvt. Ltd.,
v/s
Shri Subhash K. Parab,
CORAM :- U. V. BAKRE, J.
Pronounced on:-12th February, 2015.
Citation; 2015 ALLMR(CRI)2082
All the above appeals are
disposed of by this common
judgment since they are filed against the same common judgment
and
order dated 29.08.2011 passed by the learned Judicial
Magistrate, First Class “C” Court at Panaji (“J.M.F.C.”, for short) in
Criminal Cases No. OA/142/2006/C, OA/143/2006/C, OA/144/2006/C
and OA/145/2006/C, respectively and involve common facts and
law.
2.
The appellant was the complainant in the said criminal cases
whereas respondent no.1 was the accused therein.
Parties shall
be hereinafter be referred to as per their status in the said cases.
3.
The complainant had filed the complaint against the accused
for offence under Section 138 of the Negotiable Instruments Act,
1881 (“N.I. Act” for short)
which gave rise to the said criminal
cases. Case of the complainant, in short, was as follows:-
The complainant is a company carrying on business of selling
liquor in Goa and in rest of India. The accused was the employee
of the complainant and had collected
liquor
the payment of sale of
made by the customers on behalf
company as representative
of
the complainant-
of the complainant. However, the
accused did not pay the money collected from the customers to
the complainant. The accused owed to the complainant-company
money
which
he
had
collected
from
the customers.
The
accused issued a letter/undertaking dated 06.07.2005 in relation
to the liability owed by the accused towards the complainant. The
accused also issued cheques
bearing
no.
042360, 042361,
042362, 042364 respectively for a sum of ` 82,601/-,` 82,601/-, `
82,601/- and ` 1,18,461/-, each
30.09.2005, and 30.10.2005
dated 30.7.2005, 30.08.2005,
respectively in favour of the
complainant towards the liability. The
said cheques
when
presented for clearance were dishonoured for reasons “Funds
insufficient”. The complainant issued legal notices to the accused.
Inspite of receiving the notices, the
accused did not make the
payment and hence the complaints.
4.
The cheque no. 042361 dated 30/09/2005 for an amount of `
82,601/- and legal notice dated 23/12/2005 pertains to Criminal
case No. OA/142/06 and Criminal Appeal No. 17/2013. The cheque
bearing no. 042364 dated 30/11/2005 for an amount of `
1,18,461/- and legal notice dated 23/12/2005 pertains to Criminal
Case No. OA/143/06 and Criminal Appeal No. 15/2013. The cheque
no. 042362 dated 30/10/2005 for an amount of ` 82,601/- and legal
notice dated 23/12/2005 pertains to Criminal Case No. OA/144/06
and Criminal Appeal No. 18/2013. Lastly, the cheque no. 042360
dated 30/08/2005 for ` 82,601/- and legal notice 23/12/2005
pertained to Criminal Case No. 145/OA/06 and Criminal Appeal No.
16/2013.
5.
The substance of accusation was explained to the accused to
which the accused pleaded not guilty and claimed to be tried. The
complainant examined its authorised officer namely Shri Nishakant
Pednekar as PW1.
PW1 produced all the relevant documents.
Statement of the accused came to be recorded under Section 313
of Cr.P.C. The accused merely denied the case of the prosecution.
The accused examined himself as DW1 and produced documents.
6.
Case of the accused in short was as follows:-
In the year 1975 he was appointed as a salesman for depot
situated at Hubli, near Bankapur Chowk and he was working at the
said depot of the complainant till it was closed
i.e till the year
1976. Thereafter, he was transferred to Margao depot as a
salesman. He worked as such for a period from 1995 till 2005.
6.7.2005
On
at around 10.00 a.m., the accused was called along
with the cheque books and other documents relating to Malax
Traders in the office of
the
complainant
to
meet
Managing
Director Mr. Dilip Shirodkar, as well as the Director Mr. Vinod
Shirodkar and as per the instructions he went to
Managing Director and the director
where
the cabin of
the employee
Mr.
Nishakant Pednekar was also present during this meeting. The
accused was threatened by the said directors of the Company that
if he does not act as per their say he will be finished.
confined to
He was
office from morning till 6.00 p.m. in the evening
without food and water and all the said persons were threatening
him and pressurizing him to sign the cheques without any liability
or debt due to him. The accused was under immense pressure and
fear as his nature was meek and
relationship and high respect
further he had very good
towards the late father
Managing Director of
the complainant
company
Gajanan Shirodkar. The accused succumbed to their
and signed the cheques under force and duress.
of
the
namely Mr.
demands
On the same
day at about 4.30 p.m. he was given a letter dated 6.7.2005 which
was drafted by their advocate and he was asked to sign the same.
The accused signed the said letter under force and duress as he
was threatened by them at around 6.00 p.m. and handed over the
same along with the cheques which are the subject matter of the
present cases. He was scared of his life and being a common man
he did not want his name and reputation to spoil and, therefore,
kept quite without any reaction and did not
complaint.
During the said
lodge any police
period the accused was
facing
depression and tremendous mental agony and hoped that taking
into consideration his long term services and good relation with the
late father of the Managing Director, the
would
settle
the
complainant company
accounts amicably and maintain any dues, if
any. Further all the transactions at Margao depot are billed
and no transactions were done without issuing either credit bills or
cash bills, which were duly accounted for. It was a usual practice
that whenever any cash is paid, counter bills (cash memos) were
made and goods were delivered. The accused had not received
any cash against any goods without issuing cash memo and
without recording the transaction. The credit bills were issued only
to known customers and once cash was paid, receipts were issued
in settlement of respective credit bills.
by the accused which was
which were not
No cash was received
unaccounted against the bills and
reflected in the books of
cheques without any enforceable debt were
threat
and duress
and there
accounts. Subject
procured under
was no enforceable debt.
The
directors of the complainant are highly influential persons and well
connected to ministers and police and, therefore, he was scared of
his life to file any police case against the Managing Director and
Director of the company.
He had filed Labour Case praying to
allow him to resume the duties with back wages i.e
for
illegal
termination, retrenchment and compensation in the alternative
of around
` 3,25,000/-
which were legal dues.
Letter dated
06.07.2005 was also taken under force, coercion and duress.
7.
Upon consideration of the entire evidence on record, the
learned J.M.F.C. held that she had territorial jurisdiction to entertain
the complaint. The learned J.M.F.C. further held that the debt was
not time barred. There was also no dispute regarding execution of
the cheques presented during the validity period, issuance of legal
notice and filing of the complaint within prescribed time limit.
Learned J.M.F.C., however, held that the complainant could not
prove that the cheques were issued towards discharge of legally
enforceable debt. The J.M.F.C. held that the accused had rebutted
the presumption available to the complainant under Section 139 of
the N.I. Act.
Consequently, the accused in all the above cases
came to be acquitted. The complainant is therefore, before this
Court.
8.
Mr. Sardessai, learned Senior Counsel for the complainant,
submitted that the accused had received the legal notice in each
case, but did not reply to the same and there is no explanation for
the same. He further pointed out that the cheques bounced for the
reason “Funds insufficient”. He urged that if cheques were forcibly
taken from the accused, then he could have lodged a police
complaint and could have written to the bank to stop payment and
ought to have replied the notices thereby explaining his case. The
learned Senior Counsel pointed out that in the statement under
Section 313 of Cr.P.C. there are only denials to the case of
complainant and accused had not at all put up his case here.
Learned Senior Counsel further submitted that in order to cut short
all
the
lengthy
requirements
of
establishing
the
legally
enforceable debt, Section 139 of the N.I. Act has been enacted and
once the execution of the cheques is admitted, presumption under
Section 139 of the N.I. Act, comes into play and there is reverse
burden
on the accused to establish that there was no legal
enforceable debt. He submitted that merely by holding that there
is doubt will not help.
According to him, the doubt has to be
substantiated. He pointed out that in the deposition a suggestion
was put by the accused to PW1 that both Vinod Shirodkar and Dilip
Shirodkar was present in the office when the letter dated
06.07.2005 was obtained. He submitted that two years after giving
the said letter dated 06.07.2005, the accused, by letter dated
29.08.2007, wrote to the conciliation officer of the office of the
Commissioner of Labour thereby raising industrial dispute and in
this letter accused has specifically stated about the presence of
only Managing Director namely Mr. Vinod Shirodkar on 06.07.2005.
He, therefore, urged that the accused had taken contrary stand
and, therefore, his defence was not reliable. He submitted that in
view of the presumption under Section 139 of the N.I. Act, the
accused had to prove in trial by leading cogent evidence
that
there was no debt or liability and the accused miserably failed in
proving the same.
He, therefore, urged that the impugned
judgment and order of acquittal is perverse and bound to be
quashed and set aside.
He relied upon the judgment of the
Supreme Court in the case of
“K. N. Beena Vs. Muniyappan and
another”, [(2001) 8 SCC 458].
9.
On the other hand, Mr.
Singbal, learned counsel for the
accused, submitted that preponderance of probability is the
standard of proof for defence and accused need not enter the
witness box.
He submitted that in the cross-examination of PW1
itself the accused had showed
that he had not misappropriated
any amount. He pointed out that in the complaint, no where the
complainant has stated as to how the amount was due and in the
evidence no accounts were produced to substantiate the legally
enforceable debt. Learned counsel submitted that if money is due
against the bill for any period the same has to come in ledger book
as sundry creditors and has to be shown therein. He submitted that
the complainant being a company had to maintain stock register in
which all goods i.e liquor has to be mentioned and if not mentioned
that would amount to unaccounted money.
Learned counsel
submitted that the accused was in depression and under fear and
he even waited for two years to claim the dues before the Labour
Commissioner. He submitted that there was absolutely no reason
for the accused to give the letter dated 06.07.2005 and the
cheques. He pointed out that in the said letter it is mentioned that
the accused has willingly given the said letter and the cheques
and this itself shows that the same were taken by force and
coercion. He submitted that there is nothing in writing given by
the customers to prove that they had paid the money to the
accused.
He
further
submitted
that
if
there
was
any
misappropriation there had to be audit in which misappropriation
amount would have surfaced.
He pointed out that
PW1 has
stated about audit being conducted and also about the income tax
return being filed. He submitted that neither the audited account
has been produced nor income tax returns are produced.
He also
questioned as to why the complainant did not file any police
complaint of cheating against the accused. He urged that whatever
has been discussed by the learned J.M.F.C. Is borne out from the
cross-examination of PW1. He submitted that the some bills which
do not reflect the cheque amount are produced and they are
useless. He next submitted that power of attorney given to
Nishakant Pendekar which is produced
on record is without seal
and, therefore, the same was not admissible. He pointed out that
in the verification statement under Section 200 of Cr.P.C., PW1 has
stated that amount was misappropriated whereas in his deposition
after framing of charge PW1 stated that it was a loan liability. He
submitted that the complainant being a company had to maintain
accounts as per Section 209 of the Company Act, 1956 (' the Act”
for short) and if not maintained that is an offence under Section
209(5) of the Act.
He pointed out that under Section 224 of the
Act, there has to be audit. He then submitted that the cheques
were payable at Margao though they were presented at Panaji,
and, therefore, Panaji Court had no jurisdiction to entertain the
said complaint.
Mr. Singbal, learned counsel for the accused
relied upon the following judgments:-
i.
“Rajendra Nath Dutta and Others Vs. Shibendra
Nath Mukherjee and others”, [1982-52 Comp
Case 293 Cal.]
ii.
“Krishna Janardhan Bhat Vs. Dattatraya G.
Hegde”, [ (2008) 4 SCC 54]
iii.
“Shirish Vasant Borkar Vs. Shri Vijaykumar K.
Pillienkar Fadke and another”, [2014(1)DCR
184]
iv. “Rangappa Vs. Shri Mohan”, [2010(1) DCR 706]
v. “Western India Shipyard Ltd Vs. M/s Deekay
Steels and others”, [(2009)(2) Goa L. R. 233]
vi.
“Jinraj Paper udyog Vs. Dinesh Associates”,
[2008 Law Suit(BOM)2702]
vii.
Judgment dated 4.7.2006 of the Hon'ble
Supreme Court in the case of “M. s. Narayana
Menon @ Mani Vs. State of Kerala and another”,
10.
By way of rejoinder, Mr. Sardessai, learned Senior Counsel
submitted that since the evidence has already started and was
completed and even the judgment was passed by the Panaji Court,
the question of Panaji Court not having jurisdiction cannot now be
raised. He submitted that each case has to be decided on the facts
and circumstances of that case.
He submitted that at the first
instance the accused had to rebut the presumption and in any
case, the complainant had produced invoices on record.
He
submitted that it is the accused himself who had to write accounts
and knows that he had not written the accounts and, therefore, the
question of complainant producing the account does not arise.
He
submitted that there is no law that accounts must be produced if
the complainant is a company.
11.
I have gone through the original records and proceedings. I
have considered the arguments advanced by the learned counsel
for the parties.
I have also gone through the judgments relied
upon by the learned counsel for the parties.
12.
In the case of “Jinraj Paper Udyog” (supra), the cheques were
issued/delivered at Delhi; they were drawn on a bank at Delhi and
accepted by the complainant; and they were presented to the bank
at Delhi through payee's bank at Nagpur and were returned unpaid
by the bank at Delhi. Learned Single Judge of this Court, in the
case supra, held that the place where the debt or other liability
was required to be discharged was of crucial importance in
deciding jurisdictional issue and that the Court at Delhi had
jurisdiction. In the present cases, the cheques, which were drawn
on the Quepem Urban Co-operative Credit Society Ltd,
Margao
Branch were issued/delivered at Margao. They were presented to
the same bank at Margao and were returned unpaid at Margao.
However, the registered office of the complainant was at Panaji
and the notice of demand was issued from Panaji. The learned
J.M.F.C. in the order issuing process, had considered the Judgment
of the Hon'ble Supreme Court in the case of “K. Bhaskaran Vs.
Sankaran Vaidyan Balan” reported in 1999 Cri. L. J. 4606 and of this
Court in the case of “Ahuja Nandkishore Dongre Vs. State of
Maharashtra”, reported in 2007 Cri. L. J. 115 and had held that he
had jurisdiction to try the case. However, it was made clear that
the order shall not bar the
accused from raising the issue of
jurisdiction. After appearing before the learned J.M.F.C., the
accused did not raise the issue of jurisdiction but answered to the
substance of accusation framed against him and faced trial. No
suggestion was put to PW1 to the effect that the complaint was
filed in the Court having no jurisdiction. Only during the final
arguments before the learned J.M.F.C., the issue of jurisdiction was
raised by the Counsel for the accused. In the case of “Dasharath
Rupsingh Rathod Vs. State of Maharashtra” & Anr.”, [(2014) 9 SCC
129], the Hon'ble Supreme Court has held that once the cause of
action accrues to the complainant , the jurisdiction of the Court to
try the case will be determined by reference to the place where the
cheque is dishonoured. However, the Hon'ble Supreme Court has
made it clear that the category of complaint cases where
proceedings have gone to the stage of Section 145(2) of the N.I.
Act, or beyond shall be deemed to have been transferred by it from
the Court ordinarily possessing territorial jurisdiction, as clarified,
in the said Judgment, to the Court where it is presently pending. In
the present cases the matters crossed the stage of Section 145(2)
of the N.I. Act. The evidence was already over and even the
judgments have been pronounced by the learned J.M.F.C., and now
it is the appeals which have been heard. No prejudice of
whatsoever has been shown to have been caused to the accused
on account of the cases being tried and disposed of the learned
J.M.F.C., Panaji. The question of now holding that complaints were
not maintainable on account of territorial jurisdiction does not at all
arise.
13.
The power of attorney produced by PW1 was based on the
resolution of the complainant-company wherein all five directors of
the company were present. The certified true copy resolution
passed by the board of directors of the complainant has also been
produced by PW1, by which it was resolved to execute power of
attorney in favour of PW1, Shri Nishakant. No doubt, the said
power of attorney does not bear the seal of the complainant-
company. Section 48(1) of the Companies Act, 1956 provides that
a company may, by writing under its common seal, empower any
person, either generally or in respect of any specified matters, as
its attorney, to execute deeds on its behalf in any place either in or
outside India. In the case of “Rajendra Nath Dutta and Others”
(supra), a deed of lease was executed by the two directors of the
company but there was no seal of the company affixed to it. The
deed of lease was executed on the basis of the authorisation by
extraordinary general meeting of the shareholders by which the
managing director of the company was directed to execute the
lease and he on the basis of thereof executed the same. In the
present cases, though the board of directors of the complainant-
company by resolution authorised Mr. Dilip Shirodkar to execute
power of attorney, on behalf of the company, in favour of Mr.
Nishakant N. Pednekar, however, by the same resolution Mr.
Nishakant Pednekar was also directly authorized to do various
things/acts/deeds as stated in the said resolution, which included
representation of the company before any Court of law and to
protect and defend interest of the company in any matter whether
civil or criminal in nature; to file, initiate, commence
legal
proceedings, may be criminal as well as civil proceedings before
the competent Court of law; to appoint advocate and to sign their
wakalatnama, to lodge complaint before any authorities, police
department and to prosecute, peruse, follow all complaints till its
logical
end; and to sign any application, pleadings, verify
pleadings, file affidavits, give statement on oath, to depose on
oath, to produce documentary evidence before the competent
court of law or before any authorities, Government department as
and when required. Thus, PW1, in all the cases, had authority to
file the complaint and to depose on behalf of the complainant.
14.
In the case of “Hiten P. Dalal Vs. Bratindranath Banerjee”,
[(2001) 6 S.C.C.16], the Apex Court has held that it is obligatory
upon the Court in terms of Sections 138 and 139 of the N. I. Act, to
raise the presumption in every case where the factual basis of the
raising of presumption has been established.
15.
In the case of “K. Bhaskaran Vs. Sankaram Balan”, (AIR 1999
S.C. 3762), the Hon'ble Supreme Court has held that once the
signature on the cheque is admitted to be that of the accused, the
presumption envisaged in Section 118 of the N. I. Act, can legally
be inferred that the cheque was drawn for consideration on the
date, which the cheque bears.
16.
In the case of “K. N. Beena ”, (supra), the Hon'ble Supreme
Court has held that in view of the provisions contained in Sections
118 and 139 of the N.I. Act, the Court has to presume that the
cheque has been issued for discharging a debt or liability and said
presumption could be rebutted by the accused by proving the
contrary. In paragraph 7, the Apex Court has observed thus:-
“In this case admittedly the 1st Respondent has led
no evidence except some formal evidence. The High
Court appears to have proceeded on the basis that
the denials/averments in his reply dated 21st May,
1993 were sufficient to shift the burden of proof onto
the Appellant/Complainant to prove that the cheque
was issued for a debt or liability. This is an entirely
erroneous approach. The 1st Respondent had to
prove in the trial, by leading cogent evidence, that
there was no debt or liability. The 1st Respondent
not having led any evidence could not be said to
have discharged the burden cast on him. The 1st
Respondent not having discharged the burden of
proving that the cheque was not issued for a debt or
liability, the conviction as awarded by the Magistrate
was correct. The High Court erroneously set aside
that conviction.”
17.
In the case of “Western India Shipyard Limited”, (supra),
relied upon by the learned counsel for the accused himself, it is
observed that the accused having rebutted the presumption, it was
for the complainant to prove that there was a debt or liability to
the extent claimed by the complainant.
The above means that
once the presumption under Sections 118 and 138 of the N.I. Act
become available to the complainant, it is the accused who has to
first rebut the said presumptions and thereafter the burden shifts
on the complainant to prove that there was debt or liability to the
extent claimed by him.
18.
In the case of “Rangappa”, (supra), the Hon'ble Supreme
Court has held thus at paragraph 14:-
“In light of these extracts, we are in agreement with
the
respondent-claimant
that
the
presumption
mandated by Section 139 of the Act does indeed
include the existence of a legally enforceable debt
or
liability.
To
that
extent,
the
impugned
observations in Krishna Janardhan Bhat (supra) 20
may not be correct. However, this does not in any
way cast doubt on the correctness of the decision in
that case since it was based on the specific facts
and circumstances therein. As noted in the citations,
this is of course in the nature of a rebuttable
presumption and it is open to the accused to raise a
defence
wherein
the
existence
of
a
legally
enforceable debt or liability can be contested.
However, there can be no doubt that there is an
initial presumption which favours the complainant.
Section 139 of the Act is an example of a reverse
onus clause that has been included in furtherance of
the legislative objective of improving the credibility
of negotiable instruments. While Section 138 of the
Act specifies a strong criminal remedy in relation to
the
dishonour
of
cheques,
the
rebuttable
presumption under Section 139 is a device to
prevent undue delay in the course of litigation.
However, it must be remembered that the offence
made punishable by Section 138 can be better
described
as
a
regulatory
offence
since
the
bouncing of a cheque is largely in the nature of a
civil wrong whose impact is usually confined to the
private parties involved in commercial transactions.
In such a scenario, the 21 test of proportionality
should guide the construction and interpretation of
reverse onus clauses and the accused/defendant
cannot be expected to discharge an unduly high
standard or proof. In the absence of compelling
justifications, reverse onus clauses usually impose
an evidentiary burden and not a persuasive burden.
Keeping this in view, it is a settled position that
when an accused has to rebut the presumption
under Section 139, the standard of proof for doing
so is that of `preponderance of probabilities'.
Therefore, if the accused is able to raise a probable
defence which creates doubts about the existence of
a
legally
enforceable
debt
or
liability,
the
prosecution can fail. As clarified in the citations, the
accused can rely on the materials submitted by the
complainant in order to raise such a defence and it
is conceivable that in some cases the accused may
not need to adduce evidence of his/her own.”
19.
In the case of “Shirish Vasant Borkar”, (supra), this Court has
held that it is well settled that the accused need not disprove the
existence of consideration by way of direct evidence. The standard
of proof for the accused to rebut the presumption under Sections
139 and 118(a) of the N.I. Act, is preponderance of probabilities.
20.
In the case of “Krishna Janardhan Bhat”, (supra) the Hon'ble
Supreme Court has held that an accused for discharging the
burden of proof placed upon him under a statue need not examine
himself. He may discharge his burden on the basis of the materials
already brought on record. The Accused has constitutional right to
maintains silence. It has been held that standard of proof required
on the part of the accused is preponderance of probabilities where
as the prosecution must prove the guilt of the accused beyond all
reasonable doubt.
21.
In the case of “M. S. Narayana Menon @ Mani”, (supra), the
Hon'ble Supreme Court has reiterated that standard of proof for
the accused to rebut the presumption evidently is preponderance
of probabilities. Inference of preponderance of probabilities can
be drawn not only from the materials on records but also by
reference to the circumstances upon which he relies.
22.
After knowing the principles laid down in the various cases
as above, let us proceed to deal with the facts of the present
cases. It is pertinent to note that in the present cases, the
execution of the cheques has not been denied by the accused. On
account of the above, In view of the Section 139 of the N.I. Act,
there was presumption in favour of the complainant that said
cheques were issued in discharge of legally enforceable debt or
liability favouring the complainant and it was for the accused to
rebut the said presumption.
It is seen that though according to
the accused, letter dated 06.07.2005 and the subject cheques
were obtained from him by force or coercion, however, the
accused did not lodge any police complaint against the directors of
the complainant and others nor did he instruct his banker to stop
payment. The complainant had given
statutory notices to the
accused as required under Section 138(b) of the N.I. Act, and same
were served upon the accused though they were not accepted by
him and thus were returned “unclaimed” to the complainant. The
accused therefore is deemed to have
the statutory notices.
However, the accused did not reply the same. Adverse inference is
bound to be drawn as against the accused. Merely because in the
said letter dated 06.07.2005, it is mentioned that the same is in
the handwriting of the accused and that it is written without any
coercion or pressure of any one and that the accused had signed
the cheques on his own as matter of amicable settlement, that
cannot establish that there was coercion on the accused to sign
the letter. Such an observation of the learned J.M.F.C. is without
any basis. In fact, there was no reason for the accused not to lodge
any police complaint or not to instruct the bank to stop payment
and even there was no reason for the accused not to reply the
statutory notices. According to the accused, on 6.7.2005
around 10.00 a.m.,
he
was
called
along
with
the
at
cheque
books and other documents relating to Malax Traders in the office
of the complainant. The accused had not gone to the office of the
managing director on 06.07.2005 with the cheque books of Malax
Traders, but with his private cheque book or cheques. The coercion
or threatening had not started before the accused had gone to the
office. There was no reason at all for the accused to carry with him
his private cheque book or cheques. It should be kept in mind that
the accused had raised industrial dispute. In such circumstances,
it cannot be at all be said that the accused had successfully
discharged the initial reverse burden to show that the said cheques
were not issued towards the discharge of legally enforceable debt
or liability.
23.
It is pertinent to note that the complainant had produced on
record letter of promotion which shows that it is the accused who
had to write the accounts. In such circumstances, if the accused
had not written the accounts, the complainant cannot be expected
to produce the accounts. Be that as it may, if accounts are not
maintained by the company, there is penalty. That does not give
rise to any inference that there was no debt at all. In none of the
cases cited by the learned Counsel for the accused, it has been
held that if the transaction of the cheque pertains to a company,
the company must show the accounts in which said transaction
figures and if this
not done Section 138 of N.I. Act is not
applicable. PW1 deposed that the accused sold liquor belonging to
the complainant and misappropriated the amount and towards the
repayment of the said liability, the accused issued the cheques, in
favour of the complainant. Along with the cheques which are
subject matter of the above cases, the accused had also issued
three more cheques which were issued for the payment of the
liquor purchased by the accused himself. Those cheques were
subject matter of cases No: OA 271/06/C; OA/446/06/C; and
CRIA15-18/13
25
OA/409/06/C. PW1 deposed that out of the total bills, the
outstanding amount was ` 60,000/-, 69,005/-, and 1,19,606/-. At
least one of the credit bills produced by PW1, bearing No. 73143,
dated 06/07/2005, produced in the said other cases, was for `
1,19,606/- for which
cheque no. 768996 dated 28.02.2006 was
issued by the accused. It should be kept in mind that all the
cheques were given by the accused together. Hence, when at least
one of the bills was produced, it can be said, unless the contrary is
proved by the accused, that all the cheques were issued in the
discharge of legally enforceable debt or liability.
24.
In the circumstances above, the complainant has proved its
case beyond reasonable doubt. The learned J.M.F.C. has wrongly
acquitted the accused in all the above cases. The impugned
Judgment and Order cannot sustain and is bound to be quashed
and set aside.
Parties were notified to remain present today.
However, neither the accused nor his counsel is present. Hence,
the accused could not be heard on the point of sentence. Mr.
Shirodkar, learned Counsel for the complainant submitted that the
accused was an employee of the complainant and hence maximum
punishment should be imposed upon him. Considering the facts
and circumstances of the case, I am of the view that the sentence
which follows should serve the ends of justice.
CRIA15-18/13
26
25.
In the result, the appeals are allowed.
(a)
The
impugned
Judgment
and
order
dated
29/08/2011 is quashed and set aside.
(b)
The accused is held guilty and convicted of the
offence punishable under Section 138 of the N.I.
Act, in each of the cases namely (i) OA 142/06/C;
(ii) OA 143/06/C; (iii) OA 144/06/C and (iv)
OA/145/06/C.
(c)
In Criminal Case No. OA 142/06, the accused is
sentenced to undergo simple imprisonment for 30
days and to pay to the complainant a sum of `
83,000/-, as compensation in default to undergo
simple imprisonment for further period of 30
days.
(d)
In Criminal Case No. OA 143/06, the accused is
sentenced to undergo simple imprisonment for 45
days
and
to
pay
to
the
complainant
a
compensation of ` 1,19,000/-, in default to under
go simple imprisonment for further period of 45
days.
(e)
In Criminal Case No. OA 144/06, the accused is
sentenced to undergo simple imprisonment for 30
CRIA15-18/13
27
days
and
to
pay
to
the
complainant
a
compensation of ` 83,000/-, in default to under go
simple imprisonment for further period of 30
days.
(f)
In Criminal Case No. OA/145/06, the accused is
sentenced to undergo simple imprisonment for 30
days and to pay to the complainant an amount of
` 83,000/- as compensation, in default to undergo
simple imprisonment for a further period of 30
days.
(g)
The
accused
shall
surrender
before
the
learned J.M.F.C., within a period of 8 weeks from
today.
26.
All the above appeals stand disposed of accordingly.
U. V. BAKRE, J.
vn*
No comments:
Post a Comment