ABID ALI MOHD YASIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By consent of respondent Nos. 2 and 3, taken up for final hearing.

(2.) The applicant-appellant's complaint under section 138 of the Negotiable Instruments Act (the Act) has been dismissed under the order dated 16.3.2009 of the learned Metropolitan Magistrate, 50th Court, Vikhroli, Mumbai under C.C. No. 3442/SS/ 2008. The complainant claims amounts payable under a cheque dated 20.1.2008, which came to be dishonoured. Alongside the cheque and 10 days prior thereto, is a Receipt dated 10.1.2008. Both these documents are of Rs. 1 Lakh each. The receipt shows Rs. 1 Lakh against one truck of scrap. The cheque is issued by the wife of the contracting party, who is respondent No. 3 herein. The receipt shows certain endorsements below the initial subject-matter. This shows receipt of Rs. 50,000/- and thereafter receipt of Rs. 30,000/-, leaving a balance of Rs. 20,000/-. Hence, on this receipt, respondent No. 2 was liable to pay only Rs. 20,000/ The cheque, which is issued at a distance of 10 days from the transaction, is seen to be for securing the amount of receipt itself. Since part payments are made under the receipt and the receipt is relied upon, the cheque must be shown as a separate transaction for separate liability. That is not shown. Hence, the defence of the accused in the complaint that it was by way of security is required to be accepted. The learned trial Judge has correctly appreciated this fact. From a reading of the receipt itself, the only amount due and payable is Rs. 20,000/-. The complainant claims Rs. 1,20,000/-. Rs. 1 Lakh is seen to be without consideration. Hence, the dismissal of the complaint is justified. The presumption that arises under section 139 of the Act is rebutted by seeing the receipt with the endorsements thereunder itself.

(3.) Consequently, the order cannot be faulted. Leave to appeal cannot be granted, upon seeing the documents of the parties and hearing both the parties. Hence, leave to appeal is refused.