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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 ..... r and Developer in between the Appellant and the Respondent No. 1 (hereinafter they will be described as per their original status before the trial Court). The complainant have given loan of Rs. 1 Crore to the accused. They have entered into a Memorandum of Understanding on 09/05/2003. The complainant was given various options of re-payment. 3. The amount was advanced as accused wants to pay the consideration to owner of the property. Owner of the property situated at Bahadur S. K. Bole Marg, Dadar, Mumbai and owned by one Kishorebhai Karamsey Vikamsey. The said Kishorebhai has agreed to entrust that property for development to the accused. For some reason or other, the accused could not complete the construction of the building on the said plot. 4. Amongst various modes available as per the Memorandum of Understanding, the complainant has opted for refund of the amount of Rs. 1 Crore alongwith interest. When the Memorandum of Understanding was executed, the accused has issued two cheques to the complainant. Their details are given in para no. 11 of the Memorandum of Understanding. Those two cheques were not completed in all respect. The complainant deposited both these two chequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 138 of the Negotiable Instrument Act is quasi criminal in nature. So as to say that burden not only lies on the complainant (just like on prosecution in criminal trial), but it also lies on the accused. In other words, the burden never entirely rests on the complainant. So, it cannot be said that "there is limited scope for interference in the judgment of acquittal particularly, when it is for the offence punishable under Section 138 of the Negotiable Instrument Act". Judgment of the trial Court 10. It will be material to consider the reasonings given by the trial Court for arriving at conclusion of the acquittal. (a) Though the contention was raised about the authority of the partner for filing the complaint, the trial Court has considered the answers given in the statement under Section 313 of the Criminal Procedure Code. Therein the accused has admitted that M/s. Pinak Bharat and Company is Partnership firm and complainant is one of the partners. It was observed that facts are admitted need not be proved. (para no. 24) (b) The cheques were deposited in Jankalyan Sahakari Bank Ltd., Sion Branch and hence the Court was having territorial jurisdiction. (para no. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity. (iv) Once the complainant has admitted the payment of Rs. 19,00,000/- in the year 2005, there was no existing debt or liability when actually cheques were deposited on 27/04/2007. Submissions 13. Whereas according to the learned Advocate Shri Khandeparkar, the trial Court has failed to consider the provisions of Sections 138 and 139 of the Negotiable Instrument Act as interpreted in various judgments. He read over the contents of the Memorandum of Understanding, various correspondence and also filed copy of the award dated 25/09/2015 delivered by learned Arbitrator. Whereas according to learned Advocate Ms. Bajoriya, in fact there was no criminal intention on the part of the accused to cheat the complainant and accused has shown his bonafides when he has paid Rs. 19,00,000/-. According to her, the date and name of the payee were blank and when the complainant has filled in those details. By way of civil suit the accused has prayed for extension of time for recovery of the amount by the complainant on the basis of the Memorandum of Understanding. She has taken me through various clauses of the Memorandum of Understanding, which gives various options to the complainant. She ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the existing debt or liability, the prosecution is maintainable (para nos. 11 and 12). 18. So, I am not inclined to agree with the observations of the trial Court that cheques were issued by way of security. Even when second cheque for Rs.68,6=51,590/- was deposited, the liability towards interest has accrued. Legally recoverable debt or liabilities 19. There is much emphasis on payment of Rs. 19,00,000/- by accused to the complainant. It is not disputed by the complainant. Only issue was on her own she has not brought it on record but it is by way of cross examination. According to learned advocate for the Respondents this payment is towards repayment of the principal. Whereas according to the learned Advocate Khandeparkar, it is for the payment of the interest. Both the learned Advocates has read over the correspondence in between the parties. They are as follows:- Sr.No. Letter Dated Sent by whom Subject 1 09/02/2007 Complainant to the accused Thereby communicating her first preference to receive the premises but informing that as it is not available. She has requested to pay Rs. 3. 50 Crores immediately. 2 14/02/2007 (wrongly typed as January) Accused to the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Bir Singh Vs. Mukesh Kumar (supra) as referred above the Hon'ble Supreme Court had an occasion to make certain observations on this issue. The observations are as follows:- "33. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 would be attracted." It is further observed that "34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This is itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." 23. Learned Advocate Shri Khandeparkar heavily relied upon these o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid that neither of these contingencies exist so as to authorize to the complainant to put in dates on the cheques. They were handedover in the year 2003 and they were deposited in the year 2007. The complainant has not stated that those dates were put in as instructed by the accused. In fact, the circumstances brought on record suggest that there was dispute filed in Civil Court by way of suit. The accused has sought for extension of the time. 30. The facts of Bir Singh (supra) does not involve interpretation of section 87 of the Negotiable Instruments Act. 31. As per clause no. 5, the financer is prohibited from calling the developer to repay to secured loan with interest for a period of 36 calendar months next to execution of the Memorandum of Understanding. Whereas clause no.7 gives discretion to the financer to demand immediate repayment of the secured loan with interest. Whereas the prayer in the plaint says that the period of 36 calendar months be calculated from a month next to the January 2007. The suit was also contested. Even 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 circum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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