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2013 DIGILAW 1549 (BOM)

Vithal Tulshidas Zalmi v. Baswaraj Kedarji

2013-08-07

R.C.CHAVAN

body2013
JUDGMENT This appeal is directed against the judgment of the learned JMFC, Panaji acquitting the respondent no.1 for offence punishable under Section 138 of the Negotiable Instruments Act. 2. The appellant filed a complaint in respect of dishonour of cheque of Rs.50,000/-, admittedly issued by the respondent no.1 accused on 5/10/2010. The learned trial Magistrate accepted the defence that the cheque was issued towards purchase of sand and not for purchase of scrap of a vehicle as alleged by the complainant. The learned Magistrate, therefore, proceeded to acquit the accused. 3. After the appeal was admitted notice had been sent to the accused and also action under Section 390 Cr.P.C. was ordered. Since none appeared for respondent no.1 – accused, advocate Ms. Ketki Pednekar was appointed as Amicus Curiae to help the Court. 4. I have heard the learned Counsel for the appellant and also the learned Amicus Curiae. The learned Counsel for the appellant submitted that even if the learned Magistrate came to the conclusion that the complainant could not prove that any scrap of Swaraj Mazda vehicle was sold by the complainant to the accused, on the admission of the accused that the cheque was issued towards purchase of sand, the learned Magistrate should have held that the accused was liable to pay under the cheque. He rightly submitted that a complaint of offence punishable under Section 138 of the Negotiable Instruments Act cannot be tried as if it is a civil suit. In view of the admission of the accused that he had issued the cheque, and not only that he had issued the cheque, but that it was towards purchase of sand, he was obliged to see that the cheque was honoured, irrespective of the fact that the complainant may not have been able to prove the purpose for which the cheque was issued. The learned Counsel for the appellant, therefore submitted that the judgment acquitting the respondent no.1 ought to be set aside. 5. The learned amicus curiae, on the other hand, relied on the judgment of this Court reported at 2012 (2) Goa L.R. 551 in the case of The Bagayatdar Urban Cooperative Credit Society Ltd. V/s. Shri Vernon Vaz. I have gone through the judgment. It is on facts peculiar to that case. 5. The learned amicus curiae, on the other hand, relied on the judgment of this Court reported at 2012 (2) Goa L.R. 551 in the case of The Bagayatdar Urban Cooperative Credit Society Ltd. V/s. Shri Vernon Vaz. I have gone through the judgment. It is on facts peculiar to that case. There can be no doubt that this Court should not be interfering in acquittals recorded by the trial Court, unless it is shown that the judgments of the trial Court are perverse and/or improbable. In this case, in the face of admission of the accused that he had issued the cheque not as a gift to the complainant, but towards purchase of sand, the accused was obliged to see that the cheque was honoured. The danger of accused persons in cases of offences punishable under Section 138 of the Negotiable Instruments Act coming with defences like the one taken by the respondent no. I in this case cannot be ignored. Faced with the prospect of being convicted and there being no other defence open, the accused may take the defence of this type and allege that the cheque was issued for something else. If such defences were to be accepted, it would be impossible to achieve the object for which Section 138 was brought on the statute book. The findings of the learned Magistrate, therefore are thoroughly improbable and unsustainable. 6. The appeal is therefore allowed. The judgment acquitting the respondent no. 1 for offence punishable under Section 138 of the Negotiable Instruments Act is set aside. The accused is convicted of the said offence. However, since he is not before the Court inspite of his having furnished bond under Section 390 of the Criminal Procedure Code the learned Magistrate shall enforce the appearance of the accused before him by appropriate process within one month of receipt of writ of this Court and after hearing the parties inflict appropriate sentence upon the accused-respondent no.1. Appeal allowed.