| The Tax Publishers 2022 TaxPub(CL) 2928 (Bom-HC) NEGOTIABLE INSTRUMENTS ACT, 1881
Section 138
Trial Court passed order of acquittal of borrower as cheque was drawn in favour of a firm while complaint was filed by lender in his personal capacity, the lender categorically stated in the complaint that he was sole proprietor of the firm, which was not denied by borrower, opportunity was given to the complainant to establish the fact that he was the sole proprietor of the firm, the order of Trial Court acquitting the borrower was set aside.
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Dishonour of cheque - Issuance of cheque in favour of firm - Complaint filed by lender in his personal capacity rejected by Trial Court - Whether opportunity was given to complainant to establish the fact that he was sole proprietor of the firm
Lender filed a complaint under section 138 wherein, Trial Court passed an order of acquittal of borrower on the ground that cheque in question was drawn in favour of a firm while the complaint was filed by an individual in his personal capacity. Further, neither did the lender state that he was sole proprietor of the firm nor any documentary evidence was produced for the same. The lender filed an appeal against the order on the ground that it was specifically stated in the complaint that it was filed by the lender in the name of his sole proprietary concern. Held: On perusal of the record including the evidence led by the parties, it was seen that lender, in the body of the complaint as also in the evidence, had categorically stated that he was the sole proprietor of his firm, which averments were not denied by borrower in the cross examination nor had he replied to the statutory notice issued by the lender. However, it is also seen that absolutely no documentary evidence had been placed on record by the lender to establish that he was the sole proprietor of the firm which was a proprietary concern. Therefore, an opportunity has to be given to the complainant to establish the fact that he was the sole proprietor of the firm. Thus, the order of Trial court was set aside and the matter was remitted back to the Trial Court to decide the case afresh in accordance with law.
REFERRED :
FAVOUR : In favour of Appellant
A.Y. :
IN THE BOMBAY HIGH COURT
R.N. LADDHA, J.
Mahesh Revankar v. Kalidas Kashinath Raikar
Criminal Appeal No. 33 of 2015 with Criminal Misc. Application No. 640 of 2021 (F) in Criminal Appeal No. 33 of 2015
13 June, 2022
Appellant by: S.D. Lotlikar, Senior Advocate with Sarvesh Sawant, Advocate
Respondent No. 1 by: S.S. Kantak, Senior Advocate with Preetam Talaulikar, Arjun Naik and Mehandi Naik, Advocates
Respondent No. 2 by: Mahesh Amonkar, Additional Public Prosecutor
The appellant, who was the original complainant in Criminal Case No. OA/354/2011/C on the file of the Judicial Magistrate, First Class, 'D' Court, Panaji, is aggrieved by the dismissal of his complaint and acquittal of the respondent no. 1 of the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as 'the Act' for short).
2. The allegation in the complaint was that the respondent-accused and his wife falsely represented the complainant that they were the absolute owners and possessors of the land bearing Survey No. 16/8, admeasuring 2365 sq. mts. of Village Nachinola and induced them to purchase the same. Accordingly, on 4-9-2010, an agreement to purchase the said land was executed and as a part of consideration, an amount of 25,00,000 was paid to the Rs. accused and his wife. Thereafter, the accused and his wife failed to comply with the terms of the said agreement and also defaulted in making the repayment of the said amount within the agreed period. It is further the case of the complainant that the major part of the said land was in possession of one Mr. Jagdish Patel, who, in fact was running a Saw Mill thereon and accused had also taken money from him by agreeing to sell the same land to him. The complainant thereupon immediately contacted the accused and his wife and warned them that appropriate legal action would be initiated against them in case they do not fulfill their promise of returning the amount along with interest. The accused then requested the complainant to refrain from resorting to any such acts and promised to pay as per the terms of the agreement to the complainant the sum of Rs. 32,00,000 being refund of sum of Rs. 25,00,000 with interest accrued thereon and accordingly issued a cheque for Rs. 32,00,000, in the name of his sole proprietary concern Zenith Constructions, which is the subject matter of the present case.
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