PAWAN ENTERPRISES Vs. SATISH H VERMA

JUDGEMENT

(1.) THIS criminal revision application takes an exception to the order of acquittal dated 17th February, 1999 passed by the learned Chief Judicial Magistrate in Private Criminal Complaint Case No. 29 of 1998 whereby the non-applicant/accused has been acquitted of the offence punishable under section 138 of the Negotiable Instruments Act.

(2.) BRIEF facts are required to be stated as under : the respondent purchased one Onida colour T. V. on 4th April, 1996 from the applicant for a total consideration of Rs. 22,760/ -. The said T. V. was delivered to the non-applicant on same date and he made over the payment of Rs. 5,000/- in cash. The non-applicant had issued the post dated cheque for the amount of Rs. 17,745/- on 8th January, 1998 and he was supposed to pay the balance amount in instalment or in accordance with the post dated cheque. When the cheque was presented for encashment on due date, it was dishonoured. The fact of dishonour was communicated to the applicant by the bank on 10th January, 1998. The non-applicant was served with notice dated 19th January, 1998 and he was called upon to make the balance payment. He did not give any reply to the notice nor he had paid the amount due. The applicant, therefore, filed a private criminal complaint and contended that the non-applicant has committed an offence punishable under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as the Act ). The particulars of the offence were explained to the non-applicant/accused to which he pleaded not guilty and, therefore, the trial proceeded with. The applicant had examined himself and the other witnesses from the bank. The learned Chief Judicial Magistrate on considering the evidence adduced by the applicant/complainant and on hearing the learned Counsel for both the sides, came to the conclusion that the prosecution has failed to bring home the guilt for the offence under section 138 of the Act and in consonance with these findings he recorded the order of acquittal. It is this order which has been challenged in this revision.

(3.) HEARD learned Counsel for the applicant. He contended that the learned trial Judge wrongly held that the cheque was not issued in discharge of the liability and that in fact the cheque was issued by way of security to cover the balance amount which may become due after the purchase of Onida Colour T. V. He further contended that presumption under section 118 of the Act would be applicable and the Court has to presume that the cheque has been issued for discharging a debt or liability and if the presumption is not rebutted by the accused by proving the contrary, mere denial or rebuttal by the accused in reply to the legal notice sent by the complainant would not be enough. In support of this submission, he relied on the decision of the Apex Court in the case of (K. N. Beena v. Muniyappan and another) reported in 2002 (1) Bom. C. R. (S. C.)342 : 2002 Bom. C. R. (Cri.) (S. C.)91 : 2003 Doch. (S. C.)516 : 2001 (8) S. C. C. 458.