TMI Blog2022 (11) TMI 1373X X X X Extracts X X X X X X X X Extracts X X X X ..... al Court, it is clear that there is serious doubt in connection with the amount over and above ₹ 5,00,000/- as received by respondent No. 1 towards advance. This aspect has been brought on record from the cross-examination of the appellant and also from the evidence of respondent No. 1 in clear terms - The preponderance of probability clearly shows that no prudent man would agree to pay compensation of ₹ 10,00,000/- in such circumstances. Thus, the amount mentioned in the cheque as ₹ 15,00,000/- cannot be considered as legally recoverable debt from respondent No. 1. Accordingly, respondent No. 1 succeeded on preponderance of probability in discharging the onus and dislodging presumption under Section 139 of Negotiable Instrument Act. In the case of Dr. Sristhi [ 2022 (10) TMI 260 - BOMBAY HIGH COURT] , this Court while relying upon case of Rangappa [ 2010 (5) TMI 391 - SUPREME COURT] observed that presumption under Section 139 of the Negotiable Instrument Act could be rebutted by the cogent and convincing evidence though on preponderance of probabilities. Such observations are in fact support the arguments and contentions raised by respondent No. 1 in the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... February 2011. Thus, the appellant/complainant proved that demand notice was seen within the prescribed period and hence point No. 4 ought to have been answered in affirmative and not in negative. Whether the complainant proves that the complaint is filed within the limitation period? - HELD THAT:- The dates mentioned clearly show that respondent No. 1 received notice on 21st February 2011 and from that date he was supposed to make payment within 15 days. Thus considering 8 days of February and 7 days of the month of March 2011 which comes to total of 15 days, the said period of 15 days expired on 7th March 2011. Thus cause of action arose on expiry of 15 days i.e. on 8th March 2011 as mentioned in Section 138(c) of Negotiable Instrument Act. However, Section 142(c) specifically provides that the complaint in writing shall be filed within a period of one month. Therefore, the word within is significant and not to be construed otherwise. The complaint must be filed within a period of one month. Thus, if cause of action arose on 8th March 211, the complaint ought to have been filed within one month i.e. on or before 7th April 2011 as it has to be within a period of one month fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was filed under Section 138 of the Negotiable Instrument Act before the learned Magistrate at Mapusa. Process was issued against the respondent who appear and contest the matter. The appellant examined himself. Respondent No. 1 examined himself and one witness. The learned Magistrate vide impugned judgment and order dated 16th December 2016 dismissed the complaint and acquitted the respondent. 5. The learned Counsel for the appellant submitted that the impugned judgment is perverse and against the settled proposition of law as the learned Magistrate failed to draw presumption under Section 139 of Negotiable Instrument Act. The material brought on record by the respondent is not at all reliable to rebut such presumption. The appellant has produced receipt wherein respondent admitted that he is liable to pay ₹ 15,00,000/- towards non-performance of the contract and damages. Therefore, the impugned judgment needs to be quashed and set aside and the respondent be held guilty for the offence punishable under Section 138 of the Negotiable Instrument Act. Learned Counsel Ms. Barbara Andrade placed reliance on the following decisions: 1. Dr. Srishti Ashutosh Prabhu Dessai vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red the said property to the appellant for an amount of ₹ 7,50,000/-. The respondent also represented that the said property is having clear and marketable title and there is no dispute of any nature. Since the appellant liked the said property and on the basis of the representations made by the respondent, he agreed to purchase it for ₹ 7,50,000/-. Accordingly, a MOU dated 19th November 2009 was executed between the appellant and respondent who represented the owners of the said properties as their lawful attorney. The said MOU dated 19th November 2009 was registered before the Notary on the same date. 9. The complaint further shows that the appellant noticed that some third party was trying to interfere with the said property and upon local inquiry he got the name of the said person as Paul Fernandes claiming to be caretaker of the said property. On inquiring with Mr. Paul Fernandes the appellant was informed that Ms. Iris D'Souza and Mr. Walter Diniz Mendonca are not the sole owners of the property. There was a notice board installed in the said property informing the general public that the said property is not for sale and the trespassers will be prosecute ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istrate has to consider ingredients of Sections138 r/w. 139 of the Negotiable Instrument Act. Similarly, the Magistrate has to keep it in mind provision of Section 140 of the Negotiable Instrument Act which says that it shall not be a defence in a prosecution for an offence under Section 138 that the drawer had no reason to believe when he issued the cheque that the cheque may be dishonoured on presentment for the reasons stated in that section. 15. Thus, framing of points is a stage only when the judgment is dictated and not prior to it. At that stage, entire material is available with the Magistrate including the arguments of both sides. In the light of above facts, the duty of the Magistrate is to frame the correct point so as to arrive at a proper finding. If incorrect points are framed, a burden is unnecessarily shifting on either complainant or the accused and accordingly reasons are also affected. 16. The matter in hand is one such example wherein points have been framed without looking at the material placed before it. Admittedly, in the present matter the accused did not dispute his signature on the cheque. The only explanation that came forward from the defence is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rupees Two Lakhs fifty thousand only) by way of cash which is duly acknowledged by Party No. 1 of sum of having received the said sum of Rupees 5,00,000(Rupees Five Lakhs only). 3. That the balance sum of Rs. 2,50,000/- (Rupees Two lakhs fifty thousand Only) will be paid at the time of execution of sale deed. 4. That the Party No. 1 has represented to Party No 2 that they have no lien, and encumbrances or loans of what so ever nature on the said property. 5. That the party No. 1 have represented to party No. 2 that they have not signed any agreement for sale/Agreements, mortgage deeds/Sale Deeds/towards the said property in favour of any party. 6. That the party No. 1 states that the said property is not involved in any process of acquisition, by the Government or any local body or any authority and keeps the party No. 2 indemnified toward the same. 7. That the Party No. 1 undertakes to provide Party No. 2 a clean, clear and marketable title of the said property including vacant and peaceful possession of the said property. 8. That the necessary stamp duty will be paid at the time of Executing the Sale deed in favour of party no 1 9. That this Agreement for Sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd what would be method of refund of the advance paid and whether the appellant would be entitled to claim damages/compensation. Returning back to the complaint filed under Section 138 of the Negotiable Instrument Act, there are no averments or calculations disclosed therein as to how the figure of ₹ 15,00,000/- was arrived at when amount paid by the appellant was only ₹ 5,00,000/-. Averment in paragraph Nos. 12 and 13 of the complaint show that the appellant directed the respondent to return the said amount along with damages/loss caused to him for non-performance of the said agreement. Accordingly, the respondent in due compliance of the said MOU issued a cheque for an amount of ₹ 15,00,000/-, towards the return of the amount advanced by the accused as well as compensation/damages for having failed to execute the Sale Deed. Thus, the complaint filed before the learned Magistrate is silent as to how the figure of ₹ 10,00,000/- is arrived at towards damages/compensation. Similar are the averment in the affidavit-in-verification at Exh-4 and also in affidavit-in-evidence at Exh-31 filed on behalf of the appellant before the learned Magistrate. Cross-exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequently relied upon is the so called receipt, the contents of which reads thus: Given to Mr. Tanveer Khatib, a sum of Rs. 15,00,000/- by cheque No. 513842, drawn on Bank of Baroda, Mapusa Branch, towards security deposit against the Agreement for sale of the property (House plot) bearing Survey No. 32, Sub-Division 1 of Colvale Village admeasuring about 700m2, situated at Colvale, Bardez, Goa. In the event that on the stipulated dated being 16-5-09 I am unable to deliver the above said house plot by completing the Deed of Sale, in that case you may deposit the given cheque for recovery of advance paid amount alongwith calculated damages. Sd/- 24. On perusal of contents therein, though figure of ₹ 15,00,000/- is mentioned therein, it clearly shows that such cheque was handed over to the appellant towards security deposit against the agreement for sale of the property (house property) bearing Survey No. 32 Sub division 1 of the Colvale village. It further refers that in the event that on the stipulated date being 16th May 2009, respondent No. 1 is unable to deliver the above said house plot by completing the deed of sale, in that case the appellant may deposit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. That apart, evidence of respondent No. 1 clearly goes to show that he received only ₹ 5,00,000/- towards advance for sale of such property. In cross-examination of respondent No. 1/Dw1, no suggestion was put to him that the cheque amount includes damages/compensation to the tune of ₹ 10,00,000/- over and above ₹ 5,00,000/- paid as advance. Even the receipt at Exh.-9 nowhere mentioned that the amount of ₹ 15,00,000/- is legally due to the appellant including damages. Neither the complainant nor any document justify quantifying such damages to the tune of Rs. 10,00,000/-. No prudent man would agree to pay damages/compensation to an amount of ₹ 10,00,000/- for receipt of advance of ₹ 5,00,000/-. At the most such person may agree to return advance together with interest. Even calculating interest, it would not come to the figure of ₹ 10,00,000/-. No doubt it is not the case of complainant/appellant herein that additional amount of ₹ 10,00,000/- was toward the interest. Thus, from the material produced before the trial Court, it is clear that there is serious doubt in connection with the amount over and above ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce which is sufficient enough to prove contrary and to rebut the presumption and this again support the case of respondent No. 1. 33. In the case of Tar Mohomad Haji Abdul Rehman, APS Forex Services Pvt. Ltd., Bir Singh and Bharthi Bhanudas Gaonkar (supra), proposition is same that the presumption under Section 139 of the Negotiable Instrument Act is a rebuttable presumption and the accused is entitled to rebut it by showing preponderance of probability either through the material placed by the complainant and his cross-examination and/or by leading evidence to prove contrary. Thus, it is in fact support a case of respondent No. 1 herein. 34. The decision cited by the learned Counsel Ms. Collasso as referred above are also on the same proposition of law which need not to be discussed again and again. Each case has to be considered on its own facts and circumstances and it is for the Magistrate to conclude as to whether presumption has been rebutted successfully. 35. Coming back to the matter in hand, above discussion found in the impugned judgment cannot be faulted with as the entire material has been considered and only thereafter the learned Magistrate observed that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as perverse. 41. Point No. 4 reads thus: Whether the complaint proves that the demand notice was sent within the prescribed period? Surprisingly, this point is also answered in negative. The record shows that the appellant issued legal notice dated 19th February 2011 addressed to respondent No. 1 which is produced at Exhibit-7 (Colly). This notice was sent to two different addresses of the respondent. The acknowledgment card produced at Exhibit-7 (Colly) shows that such notice was received by respondent No. 1 on 21st February 2011. Section 138 of the Negotiable Instrument Act and more specifically clause (b) reads thus: 138 (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid. 42. Thus reading of above provision show that the drawer of cheque or the holder in due course must issue notice in writing demanding the amount mentioned in the cheque to the payee within a period of 30 days from the date of intimation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011. 7. The complaint was filed before the learned Magistrate on 8th April 2011. 48. Section 142 of the Negotiable Instrument Act reads thus: 142. Cognizance of offences [(1)] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138: [Provided that the cognizance of a complaint may be taken by the court after the prescribed period, if the complainant satisfies the court that he had sufficient cause for not making a complaint within such period.] (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. [(2) The offence under Section 138 shall be inquired into and tried only by a court within whose local jurisdiction,-- (a) if the cheque is delivered for collection through an account, the branc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2011 and it was registered on the same day. Neither the Registry at the office of learned Magistrate nor the learned Magistrate noticed the above aspect and did not raise any objection at that time. Similarly, the appellant stepped into the witness box by filing an affidavit in verification at exhibit-4 and producing necessary documents. However, the complaint as well as the affidavit-in-verification show that cause of action to file complaint arised on 9th February 2011 as no payment was effected by 8th March 2011. 53. The dates mentioned above clearly show that respondent No. 1 received notice on 21st February 2011 and from that date he was supposed to make payment within 15 days. Thus considering 8 days of February and 7 days of the month of March 2011 which comes to total of 15 days, the said period of 15 days expired on 7th March 2011. Thus cause of action arose on expiry of 15 days i.e. on 8th March 2011 as mentioned in Section 138(c) of Negotiable Instrument Act. However, Section 142(c) specifically provides that the complaint in writing shall be filed within a period of one month. Therefore, the word within is significant and not to be construed otherwise. The complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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