In an appeal application against acquittal on Section 138 NI Act charges, the High Court held that the acquittal relied on incorrect law. The court allowed leave to appeal, admitted the case, called for records, and ordered the issuance of summons to the accused.
Leave granted. Admit. Call for R & P. Action under Section 390.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Appln 200-12.odt
Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.200 OF 2012
Ravindra Bhagwanrao Gaikwad.Applicant
V/s.
Pandit Yashwant Avate & anr..Respondents
Mr.I.M.Khairdi, Advocate, for the Applicant
Mr.Y.M.Nakhwa, APP, for Respondent No.2 - State
CORAM:R.C.CHAVAN, J.
DATE:20TH JULY, 2012
P.C.
.Heard the learned counsel for the
respective parties.
2.This is an application for leave to file
an appeal against acquittal of respondent No.1
rendered by the learned Judicial Magistrate F.
C., Solapur for the offence punishable under
Section 138 of the Negotiable Instruments Act,
1881. The learned Magistrate seems to have
relied on Judgment in Sanjay Mishra vs. Kanishka
Kapoor @ Nikki & Anr., reported in 2009(5)
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Appln 200-12.odt
Bom.C.R.464, which in turn is based on the
decision of the Supreme Court inKrishna
Janardhan Bhat vs. Dattatraya G. Hegde, reported
in 2008 ALL MR (Cri.) 1164 SC. The learned
Magistrate relying on these Judgments in para 20
observed that presumption under Section 139 of
the Negotiable Instruments Act does not extend
to legally enforceable debt or liability which is
not correct law as held in Rangappa vs. Sri
Mohan, reported in 2010 Cri.L.J.2871. The
learned Magistrate seems to have expected the
complainant to prove that the amount under the
cheque was, in fact, paid by the complainant to
the accused or was due from the accused. The
learned Magistrates seems to be overlooking the
fact that the cheques are negotiable
instruments. Just as cheque passes hands, the
title gets clearer unlike the instrument of
title in respect of a property which continues
to carry the defect, if any, in the initial
transaction. With every negotiation the
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Appln 200-12.odt
presumption in favour of holder goes on getting
stronger. This is the foundation for the
instrument being negotiable otherwise no
businessman would ever accept the cheque.
Therefore, to expect that holder of the cheque
must prove the transaction which was foundation
of the cheque would hit at the very
negotiability of the instrument. View taken by
the learned Magistrate is required to be
examined. Leave granted. Admit. Call for R &
P. Action under Section 390. Needless to say,
action under Section 390 means that the learned
Magistrate may cause the accused to be produced
before him by appropriate process and take
security from them for their appearance in the
Appellate Court. If the accused appear on their
own, the learned Magistrate need not wait for
process to be issued or served upon the accused
but shall admit them to such bails as he may
deem fit.
Page 3 of 4
Appln 200-12.odt
Page 4 of 4
2 issues framed by the court
Whether the presumption under Section 139 of the Negotiable Instruments Act extends to legally enforceable debt or liability.
Whether the view that the complainant must prove the transaction was liable to dispute the negotiability of the instrument.
Colour shows how this judgement treated each authority
Sanjay Mishra vs. Kanishka Kapoor @ Nikki & Anr.Referred¶13
2009(5) Bom.C.R.464 · Who else cites this
Krishna Janardhan Bhat vs. Dattatraya G. HegdeReferred¶13
2008 ALL MR (Cri.) 1164 SC
Rangappa vs. Sri MohanExplained¶13
2010 Cri.L.J.2871 · Who else cites this
3 provisions across 2 enactments
Ravindra Bhagwanrao Gaikwad
Pandit Yashwant Avate
R.C.CHAVAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court