Dismissed

Murlidhar Abaji Bali v. Tarachand Hansraj Bothra and Anr.

Bombay HC17 Apr 2012REVN/281/2011

Case brief

AI extract

What is this about?

The court dismissed two criminal revision applications challenging convictions under Section 138 of the Negotiable Instruments Act. The court rejected arguments regarding the complainant's agent recording evidence, the defense claiming cheques were security rather than payment, and pleas for leniency due to incarceration without settlement. Both applications were dismissed with the applicant leavi

What did the court decide?

Both Criminal Revision Applications (Nos. 281 and 282 of 2011) stand dismissed; applicant to remain in jail.

Murlidhar Abaji Bali Vs Tarachand Hansraj Bothra and Anr. — Cheque Dishonour | Bombay HC (2012)

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CRA 281, 282/11

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL REVISION APPLICATION NO. 281 OF 2011

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Murlidhar s/o Abaji Bali, Prop : Somnath
Murlidhar Bali, Aged 41 years, Occ :
Business, R/o Market Yard, Ahmednagar

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Applicant

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V E R S U S

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1 Tarachand Hansraj Bothra, Age 82 years, Respondents Occ: Business/Proprietor, Tarachand Hansraj Bothra, r/o Market Yard, Ahmednagar

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2 The State of Maharashtra

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WITH

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CRIMINAL REVISION APPLICATION NO. 282 OF 2011

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Murlidhar s/o Abaji Bali, Prop : Somnath
Murlidhar Bali, Aged 41 years, Occ :
Business, R/o Market Yard, Ahmednagar

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Applicant

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V E R S U S

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1 Tarachand Hansraj Bothra, Age 82 years, Occ: Business/Proprietor, Tarachand Hansraj Bothra, r/o Market Yard, Ahmednagar

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Respondents

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2 The State of Maharashtra

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Shri M.S. Taur, Advocate for the applicant
Shri B.A. Agrwal, Advocate, h/f
Shri R.R. Mantri, Advocate for respondent No.1
Shri N.H. Borade, APP for respondent No.2/State

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CORAM : A.V.NIRGUDE, J.
DATE : 17th April, 2012

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ORAL JUDGMENT :

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1.Both these Criminal Revision Applications can
be disposed of by common judgment.

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2 CRA 281, 282/11

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2.The applicant was convicted under Section 138
of the Negotiable Instruments Act by both the Courts
below.

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It was a usual case of cheque bouncing.
Respondent No.1 is a proprietory firm. It is alleged
that respondent No.1 received cheques in question from
the applicant for discharge of his legal liability. The
cheques were given for paying the price of the goods
which respondent No.1 supplied to the applicant. Both
the cheques bounced, and after giving due notice, the
complaint was lodged. Respondent No.1 though filed the
complaints in the Court personally, but thereafter
executed a power in favour of his son to carry on with
the case. Pursuant to such power given to him, the son
of respondent No.1 attended the case, recorded his own
deposition saying that he was aware of the facts of the
case etc.

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The applicant/accused raised two defences, but
could not get any respite in the lower Courts. He did
not record his own deposition, but recorded deposition of
one defence witness.

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3.I perused the impugned judgments. The learned
counsel for the applicant raised three points. I will
deal with these points one by one.

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3 CRA 281, 282/11

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 Point No.1 :

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4.It is asserted that the complainant could not
have deputed his son as his representative to deal with
the case, record his evidence etc. According to the
applicant, because of this lapse in the prosecution case,
the entire case is vitiated. This submission is devoid
of merit. I have narrated above that the complainant
after filing of the complaint stopped attending the case,
but deputed his son to look after the same. It is not
that this representative of the complainant was not aware
of the facts of the case. He was not stranger to the
transactions. He deposed that he was helping his father
in the business and he knew the transactions which gave
rise to the cases. The representative further stated
that his father stopped attending the case mainly because
he is over 80 years of age, and due to old age, he is
unable to attend the Court work. I think, the objection
is devoid of merit because the complainant could have
very well deputed his representative to deal with the
case. The only requirement in such arrangement is that
the representative appointed by the complainant should
be aware of the facts of the case and his deposition
should support the prosecution case on all material
particulars.

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Point No.2:

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The applicant asserted that the cheques were

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5.

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4 CRA 281, 282/11

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not given for effecting payment, but were kept with the
complainant as security. I have come across number of
cases, in which similar defence is raised. The learned
counsel for the applicant explained that the applicant
was continuously buying the goods from the complainant
and was effecting payment of the price of goods from time
to time. If such was the transaction between the parties
and if the buyer gives his signed blank cheque to the
seller, it can easily be said that he authorized the
seller to use it without his permission in case of
default in payment of price of goods. In that sense, the
cheques so given can be said to be an assurance/guarantee
of payment of price of goods sold and delivered by the
seller to the buyer. The word “security” is not useful
in this transaction. “Security” is a word used generally
for securing loan etc. Admittedly, the applicant was not
indebted to the complainant. He was buying the goods
from respondent No.1 periodically and was paying the
price of the same. So, the cheques in question even if
given to the complainant as guarantee for payment of
price of goods, could have been utilized for securing
payment of price of goods. Such cheque if used in this
fashion, would amount to "effecting payment" of dues.
This defence therefore is untenable.

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Point No.3:

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6.The learned counsel for the applicant pointed

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5 CRA 281, 282/11

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out that in the defence evidence, the applicant could
bring following circumstance. The defence witness stated
that the applicant had handed over besides two cheques
which are subject matter of these two cases, several
other cheques to the complainant as guarantee or
assurance for payment of price of goods. This witness
stated that the name of the payee on some cheques was
changed without permission of the drawer etc. This
aspect of the case does not appear relevant in this
cases. The cheques of these two cases are not tampered
with. They were issued in the name of respondent No.
1/complainant and the name of the payee was not changed.

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7.Learned counsel for the applicant also pleaded
for leniency. He said that the applicant is in jail
since August, 2011 i. e. since 7 ½ months, and therefore,
his substantive sentence can be reduced to the period he
has already undergone. I would have certainly considered
this request favourably if the applicant had paid the
dues arising from the cheques in question. I asked the
applicant's counsel as to whether his client is ready and
willing to deposit the amount of cheques without interest
as condition for reducing the duration of substantive
sentence, he said, his client would not be able to raise
funds. In view of this, there is practically no
possibility of recovery of amount, and so, it is better
to leave the applicant in jail for the period for which

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6 CRA 281, 282/11

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he is sentenced. In view of above, both these criminal
revision applications stand dismissed.

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 ( A.V.NIRGUDE, J. )

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SRM/17/4/12

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***

Murlidhar Abaji Bali v. Tarachand Hansraj Bothra and Anr.

Case brief

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What did the court decide?

Murlidhar Abaji Bali v. Tarachand Hansraj Bothra and Anr.

Case brief

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