Single judge不允许acquittal under Section 138 NI Act by re-conceiving payment proof issues and directing reconsideration of the presumption under Section 139.
Leave to file appeal granted; judgment remitted to lower court for re-conitting Section 139 presumption.
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.
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Anand
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.2129 OF 2010
The Godavari Sugar Mills Limited .Applicant
V/s.
Shahaji Pandurang Patil & anr..Respondents
Mr.G.K.Jadhav, Advocate, for the Applicant
Smt.S.V.Sonawane, APP, for Respondent No.2 -
State
CORAM:R.C.CHAVAN, J.
DATE:10TH JANUARY, 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 for the offence punishable under Section
138 of the Negotiable Instruments Act, 1881 by
the learned Judicial Magistrate F. C., Kolhapur, after having held that the complainant had proved payment of 2,00,000/- to the accused`
2Appln 2129-10.odt
towards advance. The cheque dis-honoured was for 99,010/-. The accused claimed that he had given a blank cheque. The learned Magistrate disbelieved the complainant's version holding that the complainant has not proved his account books to show that a sum of 99,010/- was due.
The learned Magistrate should have seen that a
party signing and delivering a blank cheque
authorises the holder to fill up the blank
cheque. The presumption about existance of
legally enforceable liability under Section 139
of the Negotiable Instruments Act, 1881 should
also have been considered. Judgment would
require re-consideration.
3.Leave granted.
4.Admit.
5.Call for R & P.
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6.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.
3 issues framed by the court
Whether the acquittal in Section 138 NI Act ought to be reconsidered given the accused’s admission of issuing a blank cheque and the presumption under Section 139.
Whether the lower court erred in not considering the presumption of legally enforceable liability underSection 139.
Whether the applicant’s application for leave to appeal against acquittal should be granted.
2 provisions across 1 enactments
The Godavari Sugar Mills Limited
Shahaji Pandurang Patil
State
R.C. Chavan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court