UDAY SATHE Vs. RAHUL RAJENDRA BORUNDIA

JUDGEMENT

(1.) This is an appeal filed by the original complainant impugning the judgment and order passed by the IIIrd Extra Jt. District Judge and Addl. Sessions Judge, Pune, on 27-5-2004 allowing Criminal appeal No. 244 of 2003 and setting aside the conviction under section 138 of the negotiable Instruments Act, 1881 (hereinafter referred to as the "act") and sentence of one year simple imprisonment with compensation of Rs. 6204/-imposed upon the accused by the judgment and order of the trial Court being the j. M. F. C. , Pune, on 6-9-2003 in Summary Criminal Case No. 6032 of 2003.

(2.) The facts of the case are as under :

(3.) On a perusal of the record, I find that both the grounds on which the accused was acquitted are untenable in law. As far as the question of fact as to whether the accused had sufficient balance in his account when the cheque came to his Bank for collection, it is seen from the Bank's statement that there was initially sufficient money in the account on 5-5-2003, but there were several intra-day transactions in which moneys were withdrawn and deposited. Some of these transactions on the same day related to withdrawal which reduced the amount in the account in the course of the day. When the cheque which is the subject-matter of the dispute came up for payment, there was a negative account. Later on the same day, further payments were made into this account and at the end of the day, the account was once again surplus. This is, therefore, a marginal case where on the date of collection, the account of the accused started with a surplus and ended with a surplus, but went into negative territory in the course of the day. In an account where a large number of transactions take place and particularly in an account in which there are numerous transactions, the possibility of there being insufficient funds even intra-day is a commercial reality. When a person issues a cheque, he must take stock of such possibilities and must take care that his account does not go into red during the period when the cheque issued by him can come to his Bank for collection.