Dismissed

Franco Indian Pharmaceuticals Pvt. Ltd. v. the State of Maharashtra and Ors.

Bombay HC19 Sept 2007APPLN/264/2007

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision petition challenging an order that set aside a conviction under Section 138 of the Negotiable Instruments Act. The court held that the lower court's finding that the cheque was issued under duress was not perverse. Additionally, the court dismissed a second revision seeking sentence enhancement as not maintainable.

What did the court decide?

The criminal revision applications were dismissed.

Franco Indian Pharmaceuticals Pvt. Ltd. Vs the State of… — Cheque Dishonour | Bombay HC (2007)

¶1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

CRIMINAL APPELLATE JURISDICTION.

¶3

CRIMINAL APPLICATION No. 264 of 2007

¶4

M/s. Frenco Indian Pharmaceuticals Private Limited. ..Applicant.

¶5

Vs.

¶6

1.The State of Maharashtra and (2) Ors. ..Respondents.

¶7

Mr Nimish Desai, Advocate for the Applicant.

¶8

Mr U. V. Nikam, A.P.P. for the Respondent No.1.

¶9

None for the Respndent Nos. 2 and 3.

¶10

WITH

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CRIMINAL REVISION APPLICATION No. 58 of 2007

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M/s. Frenco Indian Pharmaceuticals Private Limited. ..Applicant.

¶13

Vs.

¶14

1.The State of Maharashtra and (2) Ors. ..Respondents.

¶15

Mr Nimish Desai, Advocate for the Applicant.

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Mr U. V. Nikam, A.P.P. for the Respondent No.1.

¶17

None for the Respondent Nos. 2 and 3.

¶18

CORAM: V. C. DAGA,J. DATED: 19TH SEPTEMBER, 2007.

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ORDER:-

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The Criminal Revision Application No. 264 of 2007 is directed against the judgment and order dated 15.12.2006 passed in Criminal Appeal No. 648 of 2005 by the learned Additional Sessions Judge, Greater Mumbai;( in short "the first Appellate Court") whereby,

¶21

[ 2 ]

¶22

the appe	al filed by the app	ellant	accus	ed	Nos.
1 and	2 ( i.e. the respondent	Nos.	2	and	3
herein)	came to be allowed	and	the		criminal
complaint	dated 14th October,	2005,	C.C.		No.
1684/SS/05,	came to be dismi	ssed;		whe	reunder,
the ac	cused nos. 1 and 2	were	convict	ed	by
judgment	and order dated 14.2	.2005	passed		by
learned	Special Metropolitan of	Sm	all		Causes
Court,	Mumbai ("the Trial	Court"	for		short)
for	the offence punishable un	der	Section		138

¶23

read with Section 141 of the Negotiable

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Instruments Act.

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FACTUAL MATRIX:-

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2.	Fac	tual matrix lies in narrow compass:-
The	peti	tioner "M/s	Frenc	o	Indian
Pharmaceu	ticals	Private Limited"	had	filed	a
complaint		under Section 138	read	with	Section
141	of	the Negotiable Instr	uments	Act	against
the	Respond	ent Nos. 2 and	3 con	tending	that
they	had	appointed respo	ndent	no.1	as
authorized		distributor and durin	g th	e	period
May,	2000	to November, 2002,	they	had	supplied
goods	to	them. There wer	e outs	tanding	dues
payable	by	the respondent no.1-	Comp	any	to the
tune	of	Rs.20.35,188/-. The	respo	ndent	no.2
issued	a	cheque bearing	No.	877003	dated

¶27

[ 3 ]

¶28

1.9.2003 for Rs. 8,00,000,/drawn on "Indus

¶29

Ind Bank", Andheri (East), Mumbai and handed

¶30

over to the complainant/petitioner.

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The aforesaid cheque was deposited by

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the applicant-petitioner with its Bankers

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which came to be dishonoured with bankers

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endorsement "funds insufficient".

¶35

The petitioner-complainant, thereafter,

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issued demand notice dated 24.9.2003, which was received by the respondent no. 1 and 2 but they failed to make payment of the "dishonoured cheque" which resulted in initiation of criminal proceeding under Section 138 read with Section 141 of the

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Negotiable Instruments Act ("the N.I.Act" for

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short).

¶39

The defence of the respondent Nos. 1

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and 2 was that the respondent no. 2 had issued cheque in his personal capacity; that too, under duress and force. In other words, it was not issued voluntarily. That he did not owe anything to the petitioner - complainant. The said cheque was issued by him from his personal account. That there was no legally enforceable liability against him.

¶41

[ 4 ]

¶42

Consequently, the cheque was never issued in
discharge of any legal liability. The
complainant was requested in writing not to
put cheque for encashment since it was not
issued voluntarily and not in discharge of
legally enforceable liability. This defence
did not find favour with the Trial Court.

¶43

With the result, the Trial Court convicted the

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Respondent No. 1 and 2.

¶45

The appeal was carried to the Additional Sessions Judge, Greater Mumbai against the above order of conviction, who was pleased to accept the contentions of the Respondent Nos. 1 and 2 and went on to record finding of fact that the Respondent No.2 had not issued cheque voluntarily. That the Respondent no. 2 had issued prior written notice to the complainant not to present the cheque for encashment. Inspite of this, the complainant chose to

¶46

present the cheque for encashment.

¶47

The lower Appellate Court also recorded

¶48

a finding of fact that the letter issued by the respondent no.2 was factually received by the petitioner-complainant. As such, the complaint under Section 138 of the N.I.Act was not maintainable. The lower Appellate Court

¶49

[ 5 ]

¶50

also recorded a categorical finding that there
was no legally enforceable liability as
against the respondent No.2. The cheque was
given by the respondent No.2 from his personal
account and not from the account of the
Company that too under pressure. As such, the
complaint was not maintainable. Conviction
came to be set aside. This order is subject

¶51

matter of challenge in the present revision

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petition.

¶53

SUBMISSIONS:

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8.	The	learned	counsel appearin	g for t	he
applicant	trie	d	to con	tend	that the	lower
appellate	C	ourt	did	not	appreciate	evidence
properly	and		the same	was	considered in	the
mechanical	m	anner.	As	su	ch, the	impugned
judgment	a	nd	order is	unsu	stainable. He	also
placed	relian	ce	on the	judgm	ent of the	Apex
Court in	the	case	of C.D.S.		Ltd. Vs.	Beemna
Shabeer	and	Anr	, A.I.R.	20	02, S.C., 3014	to
contend	that	t	he cheque	shall	be deemed	to
have	been	issued	by the	resp	ondent no.2 as	a
guarantor.		As	such, it	ough	t to have	been

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treated as having been issued in discharge of

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legally enforceable debt or liability.

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CONSIDERATION:-

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[ 6 ]

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9.	Having hear	d the lea	rned cou	nsel fo	r the
applicant,	the	conte	ntion	rai	sed	has no	force
for the	simple	reason	that	at	no	point of	time
the	respondent	No.2	iss	ued	this	cheque as	a
guarantor	of	the	compan	y.	A	part from	this,
the	finding of	fact	is	recor	ded	by the	Court

¶60

below that cheque in question was not issued voluntarily but it was taken forcibly.

¶61

10.	In	the	above view	of the	matter, the
finding		of	fact	rec	orded	by	the	lower
Appellate			Court	based	on	proper		appreciation
of evid	ence		cannot	be	disturbed.		The	same are

¶62

not perverse. No fault in that behalf can be found.

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In the aforesaid settled legal position

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and taking over all view of the matter, there

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is no merit in the revision petition. The

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same is liable to be dismissed.

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In the result, the revision petition is

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dismissed, with no order as to costs.

¶69

CRIMINAL REVISION APPLICATION No. 58 of 2007.

¶70

[ 7 ]

¶71

The applicant has also filed one another

¶72

Criminal	Revision	Application No.		58 of 2007
to cha	llenge the	order dated	15	.12.2006 passed
in	Criminal Rev	ision Application	No.	1968 of
2005	preferred	by the petit	ioner	before the
Additional	Sessions	Judge,	Grea	ter Mumbai,
which	came to	be dismissed,	in	which the
petitioner	was	seeking enhanc	ement	of the
sentence	imposed	by the Sp	ecial	Metropolitan
Magistrate,	Small	Causes	Cou	rt, Mumbai
together	with	enhancement of		amount of
compensation	award	ed to the	compl	ainant. The
First	Revisional	Court dismi	ssed	the revision
filed	by the	complainant si	nce	the appeal

¶73

filed by the accused was allowed. Against

¶74

this order the present revision is preferred.

¶75

The revision is liable to be dismissed

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on two counts viz: -

¶77

	Fi	rstly,	the sec	ond	revi	sion at
the	inst	ance	of the	ve	ry	same
applicant		is	not		mai	ntainable.
Secondly,		the		appe	al	itself
filed	by	the	accused	ha	ving	been
allowed		and		one		revision
petition		having	been			preferred

¶78

[ 8 ]

¶79

to challenge	that	order,wh	ich is
dismissed	today,		another
Criminal	Revision		Petition
against the	very	same	order
cannot	be		entertained.

¶80

15.	In the afo	resaid vie	w of the matter,
without	going	into	the merits	or	dem	erits	of
the	impugne	d	order,	sec	ond		revision
challenging	the	very	same	order		at	the
instance	of	the	present	applicant		is	not
maintainable.		The	revision	petition		is,	thus,
liable	to	be	dismissed as	not		ma	intainable.

¶81

In the result,the same is dismissed with no

¶82

order as to costs.

¶83

(V.C. DAGA,J)

Franco Indian Pharmaceuticals Pvt. Ltd. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

Franco Indian Pharmaceuticals Pvt. Ltd. v. the State of Maharashtra and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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