Allow Cookies!
By using our website, you agree to the use of cookies
In this case of RAHUL SUDHAKAR ANANTWAR VERSUS SHIVKUMAR KANHIYALAL SHRIVASTAV, in this case the appeal arises out of judgment and order 05.09.2018 in Criminal Appeal NO.140 of 2017 passed by the High Court of Judicature at Bombay, Nagpur Bench, in and by which the High Court has reversed the acquittal of the appellant under Section 138 of the Negotiable Instruments Act, 1881 and convicted him under Section 138 of the said Act and imposed a fine of Rs.5,00,000 and also costs of Rs.20,000 total Rs.5,20,000. In this case the appellant-accused and the respondent-complainant entered into an Agreement of Sale dated 28.02.2012 as per which the appellant-accused agreed to sell the property, registered owner of which is the mother of the appellant, in favour of the respondent-complainant. The parties have agreed that the sale consideration of the said property would be Rs.25,00,000 and the respondent-complainant has paid an advance of Rs.2,50,000 under the said Agreement dated 28.02.2012. Due to certain circumstances, the Agreement, as agreed by the parties, could not be fructified.
The appellant-accused had issued a cheque from the account of a firm named Synergy and Solution Incorporation of Rs.2,50,000 in order to refund the earnest money to the respondent-complainant. When the said cheque was presented for clearance by the respondent complainant the same was returned with the endorsement “Account Closed”. After issuing the legal Notice dated 23.08.2013, the respondent-complainant filed a complaint against the appellant under Section 138 of the N.I. Act. Upon consideration of evidence, the Trial Court acquitted the appellant-accused on the ground that the cheque was issued from the account of a firm, namely, Synergy and Solution Incorporation and the said account was in the name of one Vipin Dhopte and not in the name of the appellant-accused. The High Court has held that the Trial Court has not appreciated the evidence in the right perspective and in the light of the provisions of Section 139 of the N.I. Act which create statutory presumption in favour of the holder of cheque and the burden is on the accused to rebut the statutory presumption. Observing that there is sufficient evidence on record to show that the said cheque was issued to discharge “legally enforceable debt”, the High Court has reversed the acquittal of the appellant-accused and convicted him under Section 138 of the N.I. Act and imposed fine amount of Rs.5,00,000 and also imposed costs of Rs.20,000on the appellant. The supreme court held “Insofar as the amount directed to be deposited, the High Court has directed the appellant to deposit Rs.5,00,000 and also costs of Rs.20,000 whereas the cheque amount is only Rs.2,50,000. Though Section 138 of the N.I. Act enable the court to impose the higher amount than the cheque amount, however, considering the facts and circumstances of the case we are of the view that the amount of Rs.5,00,000 ordered to be deposited is on the higher side and the same has to be reduced to Rs.2,80,000 plus costs of Rs.20,000/- (Rupees Twenty Thousand). Ordered accordingly. Mr. Sudheer Voditel, learned counsel appearing for the respondent-complainant, has submitted that the respondent complainant has already received Rs.2,50,000/- plus Rs.20,000/- (towards costs). An amount of Rs.30,000 be disbursed to the respondent-complainant and the balance amount of Rs.2,20,000 be returned to the appellant-accused along with the accrued interest, if any. The appeal is accordingly disposed of.”
86540
103860
630
114
59824