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TMI Blog2023 (11) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... le under Section 138 of the Negotiable Instruments Act, 1881 (for short 'NI Act'), is assailed in this Appeal. 2. The appellant/complainant is a private limited company dealing in the trade of diamonds. M/s D. B. Diamonds, a proprietorship of Mr Dhaval Bhatt, placed an order with the complainant for purchasing diamond jewellery for Rs. 22,74,240/-. The complainant supplied diamond jewellery to M/s. D. B. Diamonds and raised nine invoices totalling Rs. 22,74,240/- out of which Mr Dhaval Bhatt paid Rs. 12,71,260/-; and Rs. 10,02,980/- remained to be paid to the complainant. 3. It is alleged that respondent No. 1/ accused, the brother-in- law of Mr Dhaval Bhatt, took over the liability of Mr Dhaval Bhatt to pay the outstanding amount of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. Various documents were tendered on behalf of the complainant. The statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 ('CrPC') came to be recorded. In his defence, the accused examined a witness, Habib Zaidi (DW-1), the operation Manager of HDFC Bank, Malad Branch, Mumbai. 7. After appraisal of the evidence and perusal of the documents tendered, the learned Magistrate acquitted the accused. Being aggrieved thereby, the complainant filed the present Appeal. 8. I have heard Mr Rishi Ashok, the learned Counsel appearing on behalf of the appellant; Mr Vinay Bhanushali, the learned Counsel appearing on behalf of respondent No. 1; and Mr HJ Dedhia, the learned Counsel appearing on behalf of respondent No. 2-S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of reasoning adopted by the trial Court to record the finding of acquittal. He made various submissions countering the arguments put forth on behalf of the appellant. He argued that there is no evidence on record to show that the accused took over the liability of his brother-in-law, Mr Dhaval Bhatt and that the trial Court rightly acquitted the accused. To bolster this argument and to contend that the accused had no role to play in the transaction between the complainant and Mr Dhaval Bhatt, the learned Counsel referred to the cross-examination of Mr Arnab Roy (PW-1), the authorised representative of the complainant, where he admitted that it was not the accused but Mr Dhaval Bhatt who informed the complainant that the payment of the outs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail the benefit of Section 139 of the NI Act. 12. On perusal of the cross-examination of Mr Arnab Roy (PW-1), it transpires that the entire transaction of the jewellery sale took place between the complainant and Mr Dhaval Bhatt. Mr Arnab Roy (PW-1) admits that the accused had no role to play till the delivery of the cheques to the complainant, and Mr Dhaval Bhatt handed over blank cheques with the signature of the accused to the complainant. It is further admitted that there is no written document to show that the accused had taken over the liability of Mr Dhaval Bhatt. He further admits that the contents of the cheque were filled at the instance of the complainant. 13. Further, the cross-examination of PW-1 reveals that it was Mr Dhaval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd 2008 SCC OnLine Bom 1598. Given the foregoing, the learned trial Court rightly held that the accused did not take over the liability of Mr Dhaval Bhatt. 15. Coming to the issue of whether Section 139 of the NI Act would aid the complainant in the absence of an instrument of assignment of debt, it would be necessary to reproduce the said section. The section reads as follows : "139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability." 16. The record reveals that the liability to pay the outstanding dues of the complainant was on Mr Dhaval B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by Mr Dhaval Bhatt for the outstanding amount of Rs. 10,02,980/-, the accused could have availed the benefit of section 139 of the NI Act. However, in the absence of the assignment of liability of Mr Dhaval Bhatt unto the accused and there being no nexus between the issuance of the said cheque and the liability of the accused to repay the outstanding amount to the complainant, the trial Court rightly concluded that the complainant failed to prove that the dishonoured cheque was issued by the accused for discharge of liability. 19. In such circumstances, in the considered opinion of this Court, the trial Court has rightly acquitted the accused for the offence punishable under section 138 of the NI Act. 20. As a result, this appeal f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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