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TMI Blog2022 (12) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... which is transferable and negotiable, presumption under Section 138 of the Negotiable Instrument Act can be drawn only when the preconditions are satisfied. The complainant unilaterally has put in dates on the cheques without the authority of the accused and even by not informing him. So, it amounts to material alterations. If it is so such negotiable instrument becomes void. Hence prosecution under Section 138 of the Negotiable Instrument Act cannot be initiated. On that aspect the complainant has failed to satisfy the requirement of valid cheque. Appeal dismissed. - CRIMINAL APPEAL NO. 1630 OF 2011 ALONGWITH CRIMINAL APPEAL NO. 1631 OF 2011 - - - Dated:- 2-12-2022 - S.M. MODAK, J. Shri A. S. Khandeparkar, a/w Prerak A. Sharma, Apoorva A. Khandeparkar, Rohit Mahadik, Nihir U. Dedhia, Rushikesh Bhagat, Saurabh Mittal and Vaibhav Kulkarni i/by Prerak A. Sharma - Advocate for the Appellant Ms. Megha Bajoriya- Advocate for the Respondent No. 1. Seema 1/21 Shri H. J. Dedhia APP for the Respondent No. 2-State JUDGMENT :- 1. Heard learned Advocate Shri A. S. Khandeparkar for the Appellant-Complainant, learned Advocate Ms. Megha Bajoriya for the Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Case No. 3002996/SS/2007 904443 27/04/2007 Rs. 1 Crore 2. Summary Criminal Complaint Case No. 3002997/SS/2007 904444 27/04/2007 Rs. 68,51,590/- 6. In both these cases, the accused was acquitted by separate judgments dated 18/06/2007. More or less, the contents of the judgments are same. The complainant has also adduced common evidence in both these cases. Criminal Appeal No. 1630 of 2011 is preferred against the judgment in Summary Criminal Complaint Case No. 3002996/SS/2007. Whereas Criminal Appeal No. 1631 of 2011 is preferred against the judgment in Summary Criminal Complaint Case No. 3002997/SS/2007. 7. The issue involved in these appeals is whether the learned Metropolitan Magistrate has rightly appreciated evidence. The issue is whether the presumption under Section 139 of the Negotiable Instrument Act can be drawn and whether the accused has successfully rebutted that presumption. 8. Learned Advocate Shri A. S. Khandeparkar relied upon the following judgments :- (i) Sampelly Satyanarayana Rao Vs. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he theory put up by the accused that cheque was given for security purpose as a reasonable. (para no. 29) (g) Putting up name of the payee and date on the cheque by the complainant particularly after filing of the Civil suit was not accepted by the trial Court. (para no. 30) (h) Receipt of Rs. 19,00,000/- (by way of three cheques of Rs. 4,00,000/- on 19/03/2005, Rs. 5,00,000/- on 17/06/2005 and Rs. 10,00,000/- on 30/05/2005) was suppressed by the complainant. Whereas it is admitted during the cross-` examination. (i) The Memorandum of Understanding is silent from which date the interest is payable. (j) Once the amount of Rs. 19,00,000/- is received by the Complainant in the year 2005, the demand of Rs. 1 Crore appears to be unreasonable and excessive. (para no. 31) (k) Failure to pay existing liabilities when the cheques were presented. (l) By way of cross-examination the accused was successful to offer probable and acceptable explanation so as to rebut the presumption under Section 139 of the Negotiable Instrument Act. (m) When the cheques were handed over on 09/05/2003 without mentioning the date, there was no any legal and enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 138 of the Negotiable Instrument Act cannot be continued and according to her the Respondent-accused is aged about 82 years of old. 14. By way of reply, the learned Advocate Shri Khandeparkar submitted that an action for recovery of money under the Civil law and prosecution under Section 138 of the Negotiable Instrument Act can simultaneously be prosecuted and intend to cheat is not required. Simultaneous proceedings 15. On these aspects, I agree to his submission. There are different acts which constitute cause of action for prosecution under Section 138 of the Negotiable Instrument Act. It starts from deposit of cheques and ends with failure to make payment within 15 days from the receipt of the notice and intention to deceive which is required for offence under Section 415 of the Indian Penal Code is not required for the offence under Section 138 of the Negotiable Instrument Act. About simultaneous prosecution, the Hon ble Supreme Court has clarified in case of M/s Sri Krishna Agencies Vs. State of A.P. and Anr (supra) as referred above. Cheques given as security 16. It will be material to consider the contents of the Memorandum of Understand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for further maximum grace period of one year. 3 26/02/2007 Accused to the complainant Informing her that accused is in process of arranging the funds 4 27/02/2007 Complainant to the accused Asking him to pay amount immediately. 20. In order to ascertain the intention of the parties, this Court can also peruse the contents of the mandatory notice and the reply. They are dated 22/05/2007 and 07/06/2007. The accused has disputed the right of the complainant to deposit the cheques which were given as a security. He has clarified that the suit is pending and complainant is aware about the same. He has criticized the act of the complainant in depositing the cheques without informing him. So, it is pertinent to note that in his reply, the accused has not clarified that an amount of Rs. 19,00,000/- paid in installments in the year 2005 was towards the principal. To that extent, the learned Metropolitan Magistrate was not correct in observing that there was no liability of Rs. 1 Crore. The correspondence referred above do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability by adducing evidence. 23. Learned Advocate Shri Khandeparkar heavily relied upon these observations. 24. It will be material to consider under which background these observations are made. There was conviction for the offence under Section 138 of the Negotiable Instrument Act. There was conviction and it was confirmed by the Appellate Court. In a revision, the High Court has reversed the findings of the conviction and acquitted the complainant. The Hon ble Supreme Court has restored the conviction. It is observed that the presumption under Section 139 of the Negotiable Instrument Act can be rebutted by adducing evidence. The onus is on the accused to prove that cheque was not in discharge of debt or liability by adducing evidence. It is further observed that payee may fill up the amount and other particulars and it will not invalidate the cheque. Provisions of Negotiable Instruments Act 25. Section 20 of the Negotiable Instrument Act talks about giving the authority to the holder to make inchoate stamped instrument complete. Even though the cheque is negotiable instrument, it does not require stamp. 26. Section 87 of the Negotiable Instrument Act tal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the correspondence dated 14/02/2007, by the accused to the complainant says that he has asked for grace period of one year. So, under such circumstances, it is difficult that the accused has consented the complainant to deposit those cheques. 32. On that aspect, only I agree with the findings given by the trial Court. No doubt cheque is negotiable instrument which is transferable and negotiable, presumption under Section 138 of the Negotiable Instrument Act can be drawn only when the preconditions are satisfied. The complainant unilaterally has put in dates on the cheques without the authority of the accused and even by not informing him. So, it amounts to material alterations. If it is so such negotiable instrument becomes void. Hence prosecution under Section 138 of the Negotiable Instrument Act cannot be initiated. On that aspect the complainant has failed to satisfy the requirement of valid cheque. 33. I have not considered the observations made by the learned Arbitrator in the award that is to say whether the accused is fastened with certain liabilities and how much he has paid. 34. For the above discussion, I find no merit in both these appeals and they are dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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