TMI Blog2006 (9) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... the month of March, 1996. Since the amount deposited with the accused was to bear interest and the accused represented to the complainant that he will be able to refund the amount only in December, 1996, the complainant accepted cheque No. 51719 dated 5.12.1996 issued by the accused for a sum of ₹ 2,22,000/- drawn on Nagpur District Central Cooperative Bank Limited, Ramnagar Branch, Nagpur. The complainant presented the cheque in the Bank on around 7.12.1996. By a memo dated 12.12.1996 he was informed that the cheque was dishonoured. The complainant therefore sent a notice to the accused on 16.12.1996 calling upon the accused to pay the amount due under the cheque within 15 days of receipt of the notice. This notice was duly received by the accused on 24.12.1996. Since the accused did not make the payment within stipulated period of 15 days, and on the contrary sent a reply on 3.1.1997 raising false defence, the complainant filed the said criminal complaint before the learned Magistrate. 3. Upon issuance of process by the learned Magistrate, the accused appeared and pleaded not guilty when the particulars of offence punishable under Sections 138 of the Negotiable Instrume ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut by the accused. This suggestion was denied by the complainant. In his statement under Section 313 of the Code, the accused admitted that he had received a sum of ₹ 1,08,000/- but claimed that it was against the work done by him for one Mr. Chandak. Thus, the fact that accused had received a sum of ₹ 1,08,000/- from the complainant, for whatever purpose, cannot be disputed. 6. Defence witness Madanlal Chandak stated that he had given the construction work to complainant Gandhi and accused Manohar was Gandhi's partner. In cross-examination he clarified that he had made the payment by cheque directly in the name of accused Manohar, and though the cheque, was sent through Gandhi, it was in the name of accused Deshmukh. If this is so, there would be no question of the accused having received any amount from the complainant Gandhi for construction work as claimed by the accused. In that case the accused would have stated that he had not received any amount from the complainant, but had received a cheque from Chandak. However, the suggestion to complainant Gandhi that he gave ₹ 1,80,000/- as the amount towards construction work carried out, would falsify the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 1,08,000/- from the complainant. Therefore, whether this amount was received as deposit or as advance is not very material. In either case, the accused would be liable to refund the amount to the complainant, since the accused had failed to show that the amount was received towards the construction work of building of Shri Chandak, which he claimed to have executed on behalf of complainant. 9. The learned Counsel for the appellant submitted that it was not open to the learned trial Judge to come to any such conclusion on the basis of the guarantee forms or the counter foils of the cheque book produced by the accused. He submitted that Section 20 of the Negotiable Instrument Act prescribes that when a person signs and delivers to another either wholly blank or incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete the negotiable instrument for any amount not exceeding the amount covered by the stamp, which the instrument may bear. He further submitted that Section 118 of the Negotiable Instrument Act provides that unless contrary is proved, it shall be presumed that every negotiable instrument was made or dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bable. Relying on the judgment of the Supreme Court Dhanvantrai Balwantrai Desai v. State of Maharashtra 1964CriLJ437 , this Court in Bratindranath case (supra) observed that the explanation which the accused wanted to offer must be true, and, that the words 'unless the contrary is proved' required that the presumption has to be rebutted by proof, and not by bare explanation which is merely plausible. The learned Counsel submitted that the statutory presumption is thus, placed on a different pedestal by the Apex Court as observed by this Court in Bratindranath's case. 12. In para 41 of the judgment in Bratindranath case this Court had further observed that where the burden is on the accused, the proof required to be given by him cannot be equated with the degree and character of proof which normally rests on the prosecution, and that the accused may discharge his burden and prove his case on the basis of preponderance of probabilities. The Court observed that in cases of statutory presumptions the Court is bound to draw the presumption and, therefore, in order to rebut such a presumption, the defence must clearly make out that the ingredients of the offence are absen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused. He submitted that the complainant had failed to give any calculation as to how he arrived at the figure of ₹ 2,22,000/-. The complainant has stated that the cheque bears the figure of ₹ 2,22,000/ - because it is inclusive of the interest. Considering the passage of time and rates of interest then prevailing it may not be necessary to go into actual calculations. 16. This takes me to the question as to whether the guarantor's consent form dated 5.12.1993 could be sufficient to rebut the presumption under Section 139 of the Negotiable Instrument Act. The learned Counsel for the respondent further submitted that the respondent had placed on record guarantor's consent and confirmation letters Exhs. 22 and 23 bearing the date 5.12.1993 and the signature of complainant thereon. The learned Counsel submitted that since the accused was to raise a loan from the United Western Bank for which the accused wanted the complainant to offer himself as guarantor, the accused had obtained those guarantor's consent and confirmation letters from the complainant. These letters are admitted in his cross-examination to have been signed by the complainant. According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e complainant. If Chandak had issued cheques in the name of the accused there was no question of complainant making payment on behalf of Chandak to accused since in that case the complainant would not have received any amount from Chandak. Therefore whatever benefit the accused could have had of the two documents dated 5.12.1993 from the United Western Bank is lost by examining Chandak. The uneasiness of defence in explaining existence of cheque with complainant by raising stories of receiving payment from complainant for construction work of Chandak in reply to question No. 2 in statement under Section 313 of Cri.P.C, (contradicted by Chandak himself), and that of blank cheques having been delivered because complainant was to offer himself as surety, creates a doubt about the credibility of defence. Therefore, the statutory presumptions are not rebutted. 18. The learned Counsel for the respondent submitted that a cheque would not come within a definition of cheque or bill of exchange if it is not drawn for a certain sum of money. For this purpose, he relied on a decision of Andhra Pradesh High Court in case of Avon Organics Ltd. v. pioneer Products Limits and Ors. 2004(1) Crime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lder in due course of inchoate instrument to put a date of his choice is not addressed in the judgment of the Andhra Pradesh High Court. When a drawer of a cheque delivers a signed cheque, he obviously gives an authority to the holder to put a date of his choice. Therefore, there would be no question of the instrument becoming time barred, since it would become time barred only from the date of issue, which, in view of the provision 118 would be the date on the cheque, which, under Section 20, the holder had the authority to fill. Hence, the decision of Andhra Pradesh High Court in M/s. Cement Agencies may also be not helpful to the respondent. 20. The observations of this Court in Chintaman Shundiraj v. Sadguru Narayan Maharaj Datta Sansthan and Ors. AIR1956Bom553 Aug., regarding expending the period of limitation in respect of payment of dishonoured cheque is not relevant for the decision of the present case. 21. The learned Counsel for the respondents submitted that on similar facts in Smt. Ashwini Satish Bhat v. Shri Jeevan Divakar Lolienkar and Anr. reported at 2000(5)BomCR9 , this Court had held that if a cheque was issued in 1996 for liability in 1991 it would have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed by Clause 3 of the Section 25 and, therefore, it would not be open for the accused to say that there is no legally enforceable liability. In view of this the learned Counsel for the appellant submitted that the learned Magistrate was in error in acquitting the accused holding that the cheque was not given for legally enforceable liability. Consequently, the acquittal of the respondent for offence punishable under Section 138 of Negotiable Instrument Act cannot be upheld. 24. I have heard both the Counsel for the appellant as well as respondent/accused on the question of sentence. The learned Counsel for the appellant wanted exemplary sentence of imprisonment to be imposed upon the respondent since the appellant has been kept out of the money due for last 10 years. The learned Counsel for the respondent submitted that the appellant had in fact sought by the cheque, not only the amount allegedly loaned, but also the interest thereon and, therefore, there was no question of the respondent being sentenced to an exemplary sentence. He submitted given the circumstances in which the transaction came to be entered into, and the fact that the parties have been litigating for the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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