2007 (2) TMI 716 - HC - Indian Laws

Summary

Issues Involved:
1. Condonation of delay under Section 5 of the Limitation Act.
2. Restoration of Criminal Miscellaneous Application.
3. Legality of the acquittal order under Section 138 of the Negotiable Instrument Act.
4. Applicability of the Bombay Money Lenders Act, 1946.
5. Presumption under Sections 118 and 139 of the Negotiable Instrument Act.

Detailed Analysis:

1. Condonation of Delay:
The applicant sought condonation of delay in filing Criminal Miscellaneous Application No. 10043 of 2006, which aimed to restore Criminal Miscellaneous Application No. 3815 of 2005 that was dismissed for default. The delay was attributed to the oversight of the order dated 20/12/2005, which required the removal of office objections by 12/01/2006. The court found the explanation for the delay satisfactory and condoned it, thereby allowing the application.

2. Restoration of Criminal Miscellaneous Application:
The court considered the applicant's submission that the dismissal of Criminal Miscellaneous Application No. 3815 of 2005 was due to the oversight of the order dated 20/12/2005. The application for restoration was allowed, and Criminal Miscellaneous Application No. 3815 of 2005 was restored to the file. The court, with the consensus of the parties, decided to hear the merits of the appeal itself.

3. Legality of the Acquittal Order:
The appellant challenged the acquittal order dated 10/03/2005 passed by the JMFC, Borsad, in Criminal Case No. 1744 of 2003. The trial court had acquitted the accused of the charge under Section 138 of the Negotiable Instrument Act. The appellant argued that the trial court erred in its judgment by not properly considering the evidence and the statutory presumptions under Sections 118 and 139 of the N.I. Act. The court examined the evidence and found that the trial court's acquittal was not perverse or resulting in a miscarriage of justice.

4. Applicability of the Bombay Money Lenders Act, 1946:
The appellant contended that the non-production of a money lender's license should not bar the complaint under Section 138 of the N.I. Act. The court noted that Section 2(9)(f) of the Bombay Money Lenders Act excludes advances made on the basis of negotiable instruments from the definition of "loan." Therefore, the court concluded that the complaint was not required to be dismissed solely on the ground of non-production of the money lender's license, as the transaction was based on a negotiable instrument (the cheque).

5. Presumption under Sections 118 and 139 of the Negotiable Instrument Act:
The appellant argued that the trial court failed to raise the statutory presumption in favor of the complainant. The court reiterated that the presumption under Sections 118 and 139 is rebuttable and that the accused had successfully rebutted this presumption by producing evidence of signed blank cheques and vouchers returned to them after settling old disputes. The court found that the complainant failed to prove that the cheque was issued for a legally enforceable debt or liability. The court also noted that the complainant's evidence was inconsistent and lacked credibility, further supporting the trial court's acquittal.

Conclusion:
The court dismissed the appeal, upholding the trial court's acquittal of the accused under Section 138 of the Negotiable Instrument Act. The court found that the complainant failed to establish the accused's guilt beyond a reasonable doubt and that the trial court's judgment was not perverse or resulting in a miscarriage of justice.