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TMI Blog2012 (12) TMI 1221X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst the accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881. (N.I. Act, for short) were all dismissed. 2. The parties shall hereinafter be referred to in the same manner as they appear in the cause titles of the impugned judgments. 3. The Complainant is a partnership firm. The accused no. 1 is also a partnership firm and accused nos. 2 and 3 are its partners. The accused nos. 2 and 3 are also the partners of M/s. Resourceful Earthmovers, which according to the Complainant is the sister concern of the accused. The case of the Complainant is that for various works carried out by the Complainant for M/s. Resourceful Earthmovers, the said firm had become due and liable to the Complainant in September, 1998 to pay a total sum of ₹ 1,95,00,000/-, which figure was settled by the Complainant and M/s. Resourceful Earthmovers at the end of September, 1998. The Complainant further alleged that the payment of the said dues were guaranteed by the accused who issued its own posted dated cheques for the payment of the said dues of ₹ 1,95,00,000/-. 4. The details of the cheques with which we are concerned in the present appeals are as fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e payment of the said liability of ₹ 1,95,00,000/-. Upon receipt of the said cheques, the Complainant recommenced the works on the said mines. 7. The Complainant in each case examined its partner Shri Hari Pandharinath Panandiker as PW. 1 and he produced various documents. The accused examined their Accountant Shri Sadashiv S. Dessai as DW. 1. In Criminal Case No. 254/OA/99/C, the accused also examined Advocate Joaquim Godinho as DW. 2. 8. Upon analysis of the entire oral and documentary evidence on record, the learned J.M.F.C., Panaji and the learned J.M.F.C., Ponda both found that the Complaints were not maintainable and that Complainant could not establish beyond reasonable doubt the ingredients of Section 138 of the N.I. Act, as against the accused. All the Complaints, therefore, came to be dismissed. 9. Mr. Sudesh Usgaonkar, the learned counsel appearing on behalf of the Complainant and Mr. Saresh Lotlikar, learned Senior Counsel appearing on behalf of the accused came to be heard. 10. I have minutely perused the record and considered the arguments advanced by both the parties and have gone through the citations relied upon by them. 11. The first point for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such director or partner, as the case may be, was in charge of, and responsible for the conduct of business of the company. In the Complaints, admittedly there is no such averment as required by Section 141 of the N.I. Act. Since the accused no. 3 is the partner of accused no. 1 and is signatory to the cheque in question, the Complaints could have proceeded against the accused nos. 1 and 3 but could not have proceeded against the accused no. 2, since required averments are missing. Insofar as the accused no. 2 is concerned, therefore, he has been rightly acquitted, as the Complaints were not maintainable against him. 12. The learned Magistrate, Panaji has held that PW. 1 having failed to produce on record any authority on behalf of the Complainant to depose and to file the present Complaint, the Complaint is not maintainable. In this regard, learned counsel appearing on behalf of the complainant relied upon Vishwa Mitter V/s O.P. Poddar , [(1983) 4 SCC 710] and argued that any one can set the criminal law in motion by filing a Complaint of facts constituting an offence before a Magistrate entitled to take cognizance under Section 190 of Cr.P.C. and that no Court can decline to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and on the basis of the same, dues were calculated in the last week of September 1998 and the liability of M/s. Resourceful Earthmovers was ascertained at ₹ 1,96,07,659/-, which included the principal amount and the interest thereon in view of the inordinate delay in settlement of dues. He invited my attention to the calculation produced on record as Annexure IX (Exhibit 70/C colly, in Criminal Case no. 39/OA/99/A). He submitted that the said amount was rounded up to ₹ 1,95,00,000/- which the accused agreed to pay and in order to induce the Complainant to re-start the work, issued the first post dated cheque for ₹ 15,00,000/-, dated 12/11/1998, in October 1998, due to which the Complainant started the work from 12/10/98 under verbal agreement. The learned Counsel submitted that this cheque was deposited on 18/11/1998 but was dishonoured and hence the Complainant stopped work as from 18/11/1998. Learned counsel invited my attention to the letter dated 19/11/1998 by which the accused no. 3, on behalf of accused no. 2, stated that the payment will be released before 26/11/1998 and that further payments are also intended to be released and to the subsequent letter dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en done. Relying upon the judgment of the Apex Court in I.C.D.S. Ltd. Vs Beena Shabeer (AIR 2002 3014) and of the Single Judge of this Court in Criminal Appeal No. 70/2006 between Balagi Agencies Pvt. Ltd. Vs. Mr. Vilas Bagi of Bagi Packages Ltd. and anr. , the learned Counsel contended that even if the cheques were given as security, as alleged by the accused, they were not given as pieces of paper and the provisions of Section 138 of the Act are attracted. He, therefore, submitted that the complainant had proved all the ingredients of Section 138 of N.I. Act and, therefore, the accused persons were liable to be held guilty and convicted. He, therefore, urged that the appeals be allowed and the impugned judgments be set aside and the accused be convicted and sentenced appropriately. 16. The learned Senior Counsel, appearing on behalf of the accused persons, on the other hand, strongly supported the impugned judgments and orders mainly on the ground that on the date when the said cheques were issued, the accounts were not finalized but were disputed and the sum payable was not ascertained. According to him no positive evidence has been produced by the Complainant with regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of interest. Learned Sr. Counsel further submitted that the interest has been calculated on amount of provisional bills and not final bills. Relying upon Karekar Finance Pvt. Ltd. V/s Shri M.N. Bashyam anr. [2007 (2) Goa L.R. 465], the learned Counsel contended that no offence would be made out if the cheque has been issued for more than the amount due. 18. Learned Sr. Counsel for the accused contended that the cheques were issued under pressure since the complainant had stopped works at the mines and they were not issued towards existing crystallized or ascertained liability. He submitted that the dues of ₹ 1,20,32,731.58/- in addition to TDS of ₹ 2,33,313/- and ₹ 10,00,000/- were paid to the complainant, which payment, according to the accused, was in full and final settlement of the dues. 19. Learned Counsel for the accused submitted that the Complainant had filed one Complaint before Panaji Court and other four Complaints before Ponda Court and had set up different cases in both the courts, though pertaining to the same transaction. Relying upon Damodar S. Prabhu V/s Sayed Babalal H [2010 (2) BCR (Cri) 257], he submitted that the Apex Court has he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that it did not exist. 22. There can be no dispute that the debt or liability referred to in Section 138 of the Act means the debt or liability which existed on the date on which the cheques were issued. Further, it is well settled that when a cheque is for an amount more than due by the accused, Section 138 of the Act is not attract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . He further admitted that he has not produced on record the accounts referred to by him in paragraph 3 of his affidavit. When PW. 1 was questioned as to on the basis of which document, the figure of ₹ 1,95,00,000/- was ascertained, PW. 1, for the first time, stated that the same was on the basis of bills submitted and the interest on delays as agreed by Resourceful Earthmovers. It is, however, pertinent to note that PW. 1 who is one of the partners of the complainant firm could not state as to what was the rate of interest charged for the delay. He stated that approximately it was at the rate of 18% to 24% and that the interest which he charged for the delay is included in the said amount of ₹ 1,95,00,000/-. But he was unable to state as to what was the principal amount which was due and payable and as to what was the amount of interest that was included in the said total of ₹ 1,95,00,000/-. 24. According to PW. 1, the accounts for the works done till July 1998 were settled along with interest payable on arrears, for which the cheques were issued and there were no disputes about the same. Further, according to PW. 1, there were no disputes prior to 1999 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f non payments of dues and hence by letter dated 19/11/98, M/s. Resourceful Earthmovers had requested the Complainant to re-commence the work by promising to make payments on or before 26/11/98. The letter dated 20/11/1998, by which the said cheques were forwarded to the complainant shows that the said cheques were sent as required by the complainant. The post dated cheques were forwarded with a request to the complainant to deposit them only after confirming with Ms. Resourceful Earthmovers. The accused re-commenced the works from 21/11/98. 26. The case of the accused that they were thus pressurized by the Complainant to issue the post dated cheques by stopping the works at Sangod mines and that the accounts were not finalized at the time of giving of those cheques, cannot be brushed aside lightly and in fact the same is a probable case. There is no document produced by the Complainant to prove that the accounts were finalized on or before the date of issuance of the cheques. 27. The statement of account for the period from 01/04/98 to 30/09/98 is produced by PW. 1 in his cross-examination. It is Annexure V as filed in the suit and Exhibit 63/C colly in Criminal case No. 39/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in the complainant's books of accounts and Income Tax Returns. Clause 14 of the partnership firm of the complainant requires the firm to maintain accounts to show the debts receivable by the firm. PW. 1 has deposed that the principal amount of ₹ 1,33,00,000/- has been shown as receivable from M/s. Resourceful Earthmovers, as per books of accounts and Income Tax returns but interest was not shown. 30. It is the contention of learned Counsel appearing for the Complainant that though there was no clause in any of the written agreement for charging interest for delays in payment, however, there was oral agreement in this regard. In support of his contention that oral agreement is valid without any clause for interest in the written agreements, he relied upon the case of Bhan Singh Vs. Gopal Chand (AIR 1919 Lah 42). In the case supra, the bahi entry of ₹ 825/- contained no reference to interest. It was contended that the evidence of witnesses who allege that it was settled at the time that interest was to be paid, is inadmissible under Section 92 of the Evidence Act. Since the entries in bahis cannot be said to bear any formal character and may be of various desc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thmovers, the said firm became due and liable to the Complainant, in September 1998, to pay a total sum of ₹ 1,95,00,000/-. But in Criminal Case No. 254/OA/99, filed in Panaji Court, it is averred that the Complainant carried out works at Codli and Sangod mines of M/s. Resourceful Earthmovers for the period running from 21/3/1995 till December 1998 and in respect of the said works the accounts were drawn up and the total sum payable to the Complainant was ascertained at ₹ 1,95,00,000/-. In addition to the above inconsistency in averments, there is no averment in any of the Complaints that the total sum ascertained was ₹ 1,96,07,659/- including interest at the rate of 24% per annum and that the same was however settled for ₹ 1,95,00,000/-. There is no explanation as to why the amount of ₹ 1,07,659/- has been waived. This is another circumstance favouring the accused. 32. There are various discrepancies in the case of the complainant brought out in the cross-examination of PW. 1, regarding the charges made by the complainant on different items. 33. There is on record a letter dated 27/11/1998 addressed to the Complainant by M/s. Resourceful Earthmo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were given in the anticipated payment and not towards existing debt. This letter was duly received by the learned advocate for the Complainant, prior to presenting the cheques for encashment. The Complainant did not bother to reply this letter dated 19/3/1999. In the two letters dated 8/4/1989 and 1/5/1999 which were produced by DW. 1 as Exhibits C-118 and C-199, DW. 2, Advocate Joaquim Godinho had pointed out to the Complainant various discrepancies and had set out the amount of ₹ 1,20,32,731.58 as the legitimate amount payable to the Complainant by Ms/Resourceful Earth Movers. By these letters, the Complainant was called upon to return back the cheques issued by the accused so that fresh cheques could be issued in respect of the legitimate dues. None of the letters addressed to the Complainant by Advocate J. Godinho on behalf of Ms. Resourceful Earthmovers were replied by the Complainant. Post dated cheques were issued vide letter dated 20/11/1998 and in terms of the Minutes of Memorandum of Understanding dated 9/7/1998, the date fixed by the parties to complete the computer calculation was 31/12/1998. PW. 1 in his cross-examination has admitted that as per the Minutes da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inant has failed to establish beyond reasonable doubt that the cheques which are the subject matter of all the above criminal appeals were issued in respect of the ascertained existing debt. Therefore, the complainant has failed to prove that the accused has committed offence punishable under Section 138 of the Negotiable Instrument Act. 38. The Complainant tried its luck by filing one case in Panaji Court and other four separate cases in Ponda Court, though in respect of the same transaction. The Apex Court, in the case of Damodar S. Prabhu (supra), has taken note of filing of multiple complaints that are relatable to the same transaction in multiple jurisdictions which causes harassment and prejudice to the drawers of the cheque. The Apex Court has directed that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other Court in respect of the same transaction and such disclosure should be made on a sworn affidavit which should accompany the complaint and if it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first Court should be given by the High Court by imposing heavy cost ..... X X X X Extracts X X X X X X X X Extracts X X X X
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