This court rejected an application for leave to appeal against the trial court's acquittal in a cheque dishonour case under Section 138 NI Act, holding the claim false and vexatious as the applicant failed to prove a legal liability existed.
Application rejected; applicant to pay costs of Rs. 50,000/- to the respondent. Amount recoverable as per law.
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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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.755 OF 2011
Mansoor Shah .. Applicant. Vs. Ms. Daisy Damania & Anr. .. Respondents.
Mr. Saurabh Bathla i/b Harshad Bhadbhade for the applicant. Ms. Daisy Damania, respondent no.1 in person. Mr. V. B. Konde Deshmukh APP for the State.
CORAM : A. H. JOSHI, J.
DATED : 19TH OCTOBER, 2013.
(a) The applicant was engaged as horse trainer for training horses owned by respondent no.1.
(b) The basic training fee towards training five horses payable to the applicant was in arrears.
(c) The financial condition of respondent no.1 was not good. Respondent no.1 was unable to deposit the dues with Turf Club, which had remained unpaid. Due to said default, horses, of the Respondent no.1 may not have been allowed to participate in the race. Therefore the applicant
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had transferred certain money in respondent no.1's account with Turf Club, though he had to recover money from the respondent no.1.
(d) Respondent No.1 had given to the applicant a cheque for Rs.2,00,000/- which is dated 30th April, 2001 towards his dues recoverable from the respondent no.1.
(e) Respondent No.1 also wrote acknowledgment dated 8th February, 2001 confirming that the said amount was paid towards the amount payable by respondent no.1 to the applicant due towards horses.
(f) As the cheque was dishonoured, the applicant issued notice of legal action to the respndent no.1 on 16th May, 2001 through Advocate Smt. Rekha Shukla.
(g) The contents of notice were denied by the respondents in her reply.
(h) The applicant also sent notice in rejoinder on 25th June, 2001. Due to failure of respondent no.1 in making payment, the applicant filed private complaint for dishonour of cheque under section 138 of the Negotiable Instruments Act.
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“(j) The Ld. Judge failed to appreciate the evidence in its entirety and further erred in relying upon the evidence of P.W.2 and the statement showing that there are no dues to be received by the applicant from the club. It is submitted that the applicant never raised any bills on the club as the Respondent No.1 herein requested the applicants not raise the bills on the club. The Ld. Judge failed to appreciate this fact. The applicant submits that as the applicant did not raise any bills in respect of training of horses on the club, the club statement did not show any dues vis-a-vis the applicant. The applicant most respectfully submits that that is exactly why P.W.2 has answered the question of the Respondent No.1 in positive. It is submitted that there was letter confirming the dues from the applicant and moreover there was evidence
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on record to show that the applicant was to receive money from the Respondent No.1.
(t) The Ld. Judge failed to appreciate that on the basis of D-6 P.W.2 stated that there was nothing due and payable to the applicant by Respondent No.1. However, the Ld. Judge failed to appreciate that as the applicant never raised his bills on the club the statement showed that there was nothing due and payable from the Respondent No.1.”
“The horse training fees are fixed by the club the horse owner had to deposit the fee with the club. The club in turn pays the amount to the horse trainer. In the event horse owner fails to pay the fee, the club after giving notice of two months auctioned the horse and pay the horse trainers their dues out of the auction amount. The accused had failed to pay the amount of my training fees to the club and it was more than to the tune of Rs. 2 lakhs and the club was in a legal disability to auction her horses, the amount of training fees went on increasing and it had gone to the extent of
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more than Rs. 3 lakhs and thereafter the accused had called by the club and asked to pay the amount to me. The accused had not ready to pay such amount however agreed t pay Rs.2 lakh by a post dated cheques of Rs. 2 lakhs as full and final settlement of the horse training fees.”
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rely upon testimony of one more witness and he was examined. He is complainant's witness no.2 – Mr. Riaz Khan. This witness has deposed about ownership of horses by respondent no.1 and appointment of applicant as trainer for sometime. However, in the examination in chief he does not say anything to support version of the applicant.
On the other hand in the cross examination this witness has in categoric terms stated rather admits that no amount was due and payable by respondent no.1 to the complainant on account of basic training charges. This witness has also stated/admitted that he is not aware of transaction between the accused and the complainant towards which the cheque subject matter was issued by the respondent. This later version of Riaz Khan does not render any help to the applicant.
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and pressed orally before this court in grounds that it was obvious that no over dues are shown since the applicant has not raised the bills at the request of the applicant looks like story telling. Moreover, it is a matter of common knowledge that raising of bills even if done will not result in showing debit in the books.
(b) The applicant has misused his position that he was in care and physical possession due to entrustment for training the horses owned by respondent no.1, and in that peculiar precarious position the respondent no.1 was required to go to house of the applicant.
(c) The applicant has by exerting influence as regards safety and security of the horse, constrained respondent no.1 to sign the cheque and issue the confirmation.
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3 issues framed by the court
Whether the application for leave to appeal against the acquittal in a cheque dishonour case should be allowed.
Whether the applicant has proved the existence of a debt or liability towards which the dishonoured cheque was issued.
Whether the criminal complaint was a false and vexatious claim warranting imposition of costs.
1 provisions across 1 enactments
Mansoor Shah
Ms. Daisy Damania
A. H. Joshi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
