2003(2) ALL MR 756
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
S.T. KHARCHE, J.
M/S. Pawan Enterprises Vs. Satish H. Verma
Criminal Revision Application No.46 of 1999
10th January, 2003
Petitioner Counsel: Shri. S.S. VODITEL
Negotiable Instruments Act (1881) S.138 - Criminal P.C. (1973), S.397 - Purchase of T.V. on installments - Some amount paid in cash and remaining amount to be paid in installment - One post dated cheque also issued in favour of seller - Default in payment - Amount in cheque more than amount due in transaction - Dishonour of cheque on presentation on due date - Cheque held to have been issued as security and not covering liability in transaction of purchase of TV by trial court and accused acquitted - When two views are possible order of acquittal could not be reversed. (Para 7)
Cases Cited:
K. N. Beena Vs. Muniyappan, 2002(1) ALL MR 277 (S.C.)=2001(8) SCC 458 [Para 3,8]
Dalmia Cement (Bharat) Ltd. Vs. Galaxy Traders and Agencies Ltd., 2001(1) ALL MR 846 (S.C.)=2001(6) SCC 463 [Para 4,8]
JUDGMENT
JUDGMENT :- This Criminal Revision Application takes an exception to the order of acquittal dated 17th February, 1999 passed by the learned Chief Judicial Magistrate in private Criminal Case No.29 of 1998 whereby the non applicant/accused has been acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act.
2. Brief facts are required to be stated as under :-
The respondent purchased one Onida colour T.V. on 4th April, 1996 from the applicant for a total consideration of Rs.22,760/-. The said T.V. was delivered to the non-applicant on same date and he made over the payment of Rs.5,000/- in cash. The non-applicant had issued the post dated cheque for the amount of Rs.17,745/- on 8th January, 1998 and he was supposed to pay the balance amount in installment or in accordance with the post dated cheque. When the cheque was presented for encasement on due date, it was dishonored. The fact of dishonour was communicated to the applicant by the bank on 10th January, 1998. The non-applicant was served with notice dated 19th January, 1998 and he was called upon to make the balance payment. He did not give any reply of the notice nor he had paid the amount due.
The applicant, therefore, filed a private Criminal Complaint and contended that the non-applicant has committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as the Act).
The particulars of the offence were explained to the non-applicant/accused to which he pleaded not guilty and, therefore, the trial proceeded with. The applicant had examined himself and the other witnesses from the bank. The learned Chief Judicial Magistrate on considering the evidence adduced by the applicant/complainant and on hearing the learned Counsel for both the sides, came to the conclusion that the prosecution has failed to bring home the guilt for the offence under Section 138 of the Act and in consonance with these findings he recorded the order of acquittal. It is this order which has been challenged in this revision.
3. Heard learned Counsel for the applicant. He contended that the learned trial Judge wrongly held that the cheque was not issued in discharge of the liability and that in fact the cheque was issued by way of security to cover the balance amount which may become due after the purchase of Onida Colour T.V. He further contended that presumption under Section 118 of the Act would be applicable and the Court has to presume that the cheque has been issued for discharging a debt or liability and if the presumption is not rebutted by the accused by proving the contrary, mere denial or rebuttal by the accused in reply to the legal notice sent by the complainant would not be enough. In support of this submission, he relied on the decision of the Apex Court in the case of K. N. Beena Vs. Muniyappan and another (reported in 2001(8) SCC 458 : [2002(1) ALL MR 277 (S.C.)]).
4. The learned Counsel for the applicant further contended that the object for enacting Section 138 will have to be taken into consideration and interpretation of the said section would be done in the light of the object thereof. In support, he relied on the decision of the Apex Court in the case of Dalmia Cement (Bharat) Ltd. Vs. Galaxy Traders and Agencies Ltd. and others (reported in 2001(6) SCC 463 : [2001(1) ALL MR 846 (S.C)]) wherein it has been held that, "The Negotiable Instruments Act, 1881 was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instruments is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. The laws relating to the Act are, therefore, required to be interpreted in the light of the objects intended to be achieved by it despite there being deviations from the general law and the procedure provided for the redressal of the grievances to the litigants. Efforts to defeat the objectives of law by resorting to innovative measures and methods are to be discouraged.
Section 138 of the Act makes a civil transaction to be an offence by fiction of law. To constitute an offence under Section 138 of the Act, the complainant is obliged to prove its ingredients which include the receipt of notice by the accused under clause (b). It is not the "giving" of the notice which makes the offence but it is the "receipt of the notice by the drawer which gives the cause of action to the complainant to file the complaint within the statutory period."
5. I have given thoughtful consideration to the submissions of the learned Counsel for the applicant. In this case, it is not disputed that the non-applicant had purchased a Colour T.V. on 4th April, 1996 for Rs.22,760/- and he took delivery of the T.V. on the same day on payment of the sum of Rs.5,000/- in cash. It is also not disputed that thereafter on 8th January, 1998, a post dated cheque for Rs.17,745/- was issued. This post dated cheque was presented in the bank and it was communicated to the applicant on 10th January,1998 by the bank that the said cheque was dishonoured. It is also not disputed that 15 days legal notice as is required under Section 138 of the Act was served and the amount of Rs.17,745/- was demanded which remained unpaid.
6. The learned trial Judge on considering the evidence observed that the cheque was issued by the non-applicant by way of security and not in the discharge of any liability. The liability and security are two distinct entities and both cannot be mixed or acted upon simultaneously. If the act of a person in discharge of liability is not done, then the security comes in picture. If the act in discharge of a liability is performed, then security would not have any legal force. Thus the observations of the learned Magistrate show that it could be said that if the accused would have paid all the installments, then the said cheque dated 8th January, 1998 although issued on 4th April 1996 could not create any legal liability against the accused and, therefore, it could not be said to be a cheque issued in discharge of the liability.
7. These observations of the learned Magistrate in the given set of circumstances cannot be said to be erroneous, especially when it is not disputed that the applicant had received the amount of Rs.5,000/- in cash on the date of sale of Onida T.V. i.e. on 4th April, 1996 and thereafter he had also received the amount of Rs.6,965/- in cash by way of installments. The fact that he had received this amount of Rs.6,965/- in cash by way of installments is conspicuously absent in the legal notice served on the non-applicant. In view of this situation, the only possible view that could be adopted is that the cheque has been issued not for the purpose of covering the liability but it must have been issued as a security for the balance amount. It is settled law that when two views are possible then one in favour of the accused has to be accepted. However, the Court cannot lose sight of the fact that the learned trial Court was of the view that the cheque was issued as a security for the balance amount and, therefore, he recorded the finding of acquittal. While dealing with the order of acquittal, when two views are possible, then it would not be proper on the part of this Court to exercise revisional powers under Section 397 of the Code of Criminal Procedure for reversing the finding of acquittal.
8. In the backdrop of aforesaid circumstances, it is obvious that the decisions of the Apex Court in the cases of Dalmia Cement (Bharat) Ltd. Vs. Galaxy Traders and Agencies Ltd. and others (cited supra) and K. N. Beena Vs. Muniyappan and another (cited supra) have no bearing on the facts and circumstances of the present case. Having regard to the admitted position and considering the scope and object of the provisions of Section 138 read with Section 118, I am of the considered view that in the present case it can not be said that the cheque was issued for discharging the liability to the extent of the amount of Rs.17,745/-, especially when it is undisputed that what was due on 19-01-1998 was the amount not exceeding Rs.10,975/- only.
9. In the result, I do not find any merit in the revision application and the same stands dismissed.