{"id":38538,"date":"2003-11-20T00:00:00","date_gmt":"2003-11-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/goa-plast-p-ltd-vs-chico-ursula-dsouza-on-20-november-2003"},"modified":"2016-01-12T18:06:51","modified_gmt":"2016-01-12T12:36:51","slug":"goa-plast-p-ltd-vs-chico-ursula-dsouza-on-20-november-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/goa-plast-p-ltd-vs-chico-ursula-dsouza-on-20-november-2003","title":{"rendered":"Goa Plast (P) Ltd vs Chico Ursula D’Souza on 20 November, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Goa Plast (P) Ltd vs Chico Ursula D’Souza on 20 November, 2003<\/div>\n
Author: . A Lakshmanan<\/div>\n
Bench: B.P. Singh, Dr. Ar. Lakshmanan.<\/div>\n
           CASE NO.:\nAppeal (crl.)  1968 of 1996\n\nPETITIONER:\nGoa Plast (P) Ltd.\t\t\t \t\t\t      \n\nRESPONDENT:\nChico Ursula D'Souza\t\t\t\t\t               \n\nDATE OF JUDGMENT: 20\/11\/2003\n\nBENCH:\nB.P. Singh & Dr. AR. Lakshmanan\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
Dr. AR. Lakshmanan, J.\n<\/p>\n
\tThis appeal is preferred by the appellant\/complainant against the order of the
\nHigh Court of Judicature at Bombay, Panaji Bench in Criminal Appeal No. 37\/1995
\nwhereby the High Court confirmed the order of acquittal dated 25.08.1995 passed by
\nthe Judicial Magistrate, First Class in Pvt. N.C. Case No. 149\/93\/8 for offence
\npunishable under Section 138 of the Negotiable Instruments Act.\n<\/p>\n
\tThe brief facts leading to the filing of the present appeal are as follows:\n<\/p>\n
\tThe respondent issued 10 post-dated cheques of Rs.40,000\/- each in favour of
\nthe appellant totalling Rs.4 lakhs for payment towards the liability of the amount
\nmisappropriated from the funds of the appellant-Company.  The respondent wrote a
\nletter to the appellant denying liability to pay the aforesaid sum for the reasons given in
\nthe letter dated 12.02.1993(Annexure P-1).  The appellant deposited the first cheque for
\nencashment.  The said cheque was dishonoured by the Bank on the ground that the
\nrespondent had issued instructions to stop payment.  The appellant sent a legal notice
\nto the respondent regarding the dishonour of the cheque demanding payment of
\nRs.40,000\/- within 15 days.  As the respondent did not comply with the aforesaid notice,
\na complaint was filed against the respondent under Section 142 of the Negotiable
\nInstruments Act (hereinafter referred to as “the Act”) for offence punishable under
\nSection 138 of the Act.  According to the appellant, the respondent\/accused was
\nworking as Managing Director of the appellant-Company. The services of the
\nrespondent were discontinued from the month of July, 1992.  The appellant examined
\nits General Manager on their behalf to prove the complaint.  The respondent in defence
\ndid not examine any witness.  The respondent also did not step in the witness box so as
\nto subject himself to the cross-examination.  He only brought on record the letter dated
\n12.02.1993 written by him to the Company.  True copy of the advice from the Bank
\ndated 12.04.1993, true copy of the complaint dated 06.03.1996 and true copy of the
\ndeposition have been marked as Annexures P-2, P-3 and P-4.\n<\/p>\n
\tThe learned Judicial Magistrate, First Class vide order dated 25.08.1995
\nacquitted the respondent holding that the petitioner failed to prove the liability and also
\nholding that the respondent had rebutted the statutory presumption under Section 139
\nof the Act.    Aggrieved by the said order, the appellant preferred Criminal Appeal No.
\n37 of 1995 to the High Court of Judicature at Bombay which also dismissed the appeal
\nholding that the appellant had failed to prove the liability on the part of the respondent to
\npay the sum in question.  Aggrieved by the judgment and order dated 12.01.1996 of the
\nHigh Court of Bombay in Criminal Appeal No. 37\/1995, the present appeal was
\npreferred by the appellant.\n<\/p>\n
\tWe heard Shri Dhruv Mehta, learned counsel appearing for the appellant and
\nShri A.K. Sanghi, learned counsel appearing for the respondent.\n<\/p>\n
\tShri Dhruv Mehta, learned counsel appearing for the appellant, submitted that
\nthe presumption has to be rebutted by leading evidence and not by mere explanation or
\nstatement and that mere issuance of a cheque in favour of the appellant-Company is
\nsufficient to show that the respondent\/accused owes liabilities of the appellant-
\nCompany.  While construing the provisions of Section 138 of the Act, besides the fact
\nthat the cheque issued by the respondent was dishonoured, nothing further is required
\nto be proved by the complainant and it is for the accused to rebut the presumption
\nunder Section 139 of the Act.  He would further submit that merely by sending a letter or
\na communication to the appellant-Company is not sufficient unless and until the
\npresumption is rebutted by leading evidence and that the presumption cannot be said to
\nbe rebutted.  Shri Dhruv Mehta would further urge that it was incumbent on the
\nrespondent\/accused to examine Rajan Kinnerkar as the respondent stated in his letter
\ndated 12.02.1993 that Rajan Kinnerkar was responsible for the financial transactions of
\nthe Company and, therefore, he is responsible for the unexplained expenditure of the
\nCompany’s Accounts.  It was further contended that as soon as the
\nrespondent\/accused presented or delivered the cheques to the appellant-Company, he
\nadmitted the liability and the cheque on presentation to the Bank being dishonoured,
\nthe ingredients of Section 138 of the Act are satisfied and the accused committed an
\noffence punishable under Section 138 of the Act.\n<\/p>\n
\tShri A.K. Sanghi, learned counsel appearing for the respondent\/accused,
\nsubmitted that the appellant\/complainant scrupulously avoided in the complaint and in
\nthe examination-in-chief of P.W.1 to state the relationship with the respondent\/accused
\nand there is also no whisper in the complaint as well as in the evidence led on behalf of
\nthe appellant regarding the receipt of the letter dated 12.02.1993.  It was further
\nsubmitted that the appellant has not placed before the trial Court any details or
\nstatement as to how the respondent is liable for any dues alleged to be against the
\nrespondent.  Shri A.K. Sanghi would further submit that mere presentation or delivery of
\nthe cheque, in the instant case, to the appellant by the respondent will not amount to
\nacceptance of the debt or liability and on the contrary, the respondent has given the
\nentire history in his letter dated 12.02.1993 before presentation of the cheque in the
\nmonth of April, 1993 to the Bank.  It was further stated that the very letter was drafted
\nby Rajan Kinnerkar and it was prepared, as directed by the appellant, as per the draft
\nand, therefore, the respondent has rightly and specifically disowned the liability of Rs. 4
\nlakhs much less Rs.40,000\/- involved in the instant appeal.\n<\/p>\n
\tBefore we advert to the respective contentions of the learned counsel appearing
\non either side, it is beneficial to quote Section 138 and Section 139 of the Act as it stood
\nat the relevant time.  Sections 138 and 139 of the Act read as under:
\n“138.  Dishonour of cheque for insufficiency, etc., of funds in the
\naccount.-  Where any cheque drawn by a person on an account maintained
\nby him with a banker for payment of any amount of money to another person
\nfrom out of that account for the discharge, in whole or in part, of any debt or
\nother liability, is returned by the Bank unpaid, either because of the amount of
\nmoney standing to the credit of that account is insufficient to honour the
\ncheque or that it exceeds the amount arranged to be paid from that account
\nby an agreement made with that bank, such person shall be deemed to have
\ncommitted an offence and shall, without prejudice to any other provision of
\nthis Act, be punished with imprisonment for a term which may extend to one
\nyear, or with fine which may extend to twice the amount of the cheque, or with
\nboth:\n<\/p>\n
\tProvided that nothing contained in this Section shall apply unless\n<\/p>\n
(a)\tthe cheque has been presented to the bank within a period of six
\nmonths from the date on which it is drawn or within the period of its
\nvalidity, whichever is earlier;\n<\/p>\n
(b)\tthe payee or the holder in due course of the cheque, as the case may
\nbe, makes a demand for the payment of the said amount of money by
\ngiving a notice, in writing, to the drawer of the cheque, within fifteen
\ndays of the receipt of information by him from the bank regarding the
\nreturn of the cheque as unpaid; and<\/p>\n
(c)\tthe drawer of such cheque fails to make the payment of the said
\namount of money to the payee or, as the case may be, to the     holder
\nin due course of the cheque, within fifteen days of the receipt of the
\nsaid notice.”\n<\/p>\n
“139.  Presumption in favour of holder.- It shall be presumed, unless the
\ncontrary is proved, that the holder of a cheque received the cheque of the
\nnature referred to in Section 138 for the discharge, in whole or in part, of any
\ndebt or other liability.”\n<\/p>\n
\tWe have perused the pleadings, annexures, the order passed by the learned
\nJudicial Magistrate and the judgment rendered by the High Court.  In our view, the High
\nCourt and the learned Judicial Magistrate failed to give effect to Section 139 of the Act
\nwhich creates a presumption unless the contrary is proved that the holder of cheque
\nreceived the cheque for discharge in whole or in part of any debt or other liability.   We
\nhave perused the contents of the letter dated 12.02.1993.  Neither the said letter is
\nproved nor its contents nor is the document produced in the proceedings of the Court.
\nIt is pertinent to note that in the said letter, the respondent\/complainant did not,
\nhowever, deny the liability as such but merely shifted it on third person.  The veracity of
\nthe contents of the letter could only be verified if the contents of the letter were proved.
\nThe High Court and the learned Judicial Magistrate have ignored the admission of the
\nliability by the respondent who said that the liability did exist but he was not responsible
\nfor it.  While considering this, the High Court and the learned Magistrate treated the
\nproof adduced by the respondent, namely, the letter, denying the liability and that some
\nother person is liable as sufficient to rebut the presumption under Section 139 of the
\nAct.  As already noticed, the appellant examined its General Manager on his side.  The
\nrespondent did not examine any witness and also did not step in the witness box so as
\nto step himself for the cross-examination.  The respondent has brought on record the
\nletter dated 12.02.1993 written by him to the Company.\n<\/p>\n
\tIn our view, the High Court and the learned Judicial Magistrate have clearly
\nmisunderstood the object behind Section 138 of the Act.  Sections 138 and 139 of the
\nAct were enacted in view of the fact that cheques were issued for payment of admitted
\nliability but the drawer used to dishonour the said liability by issuing instructions to the
\nBank for stop payment.  To avoid the aforesaid and to create an element of credibility
\nand dependability, the aforesaid Sections were enacted which provide a criminal
\nremedy of penalty if the ingredients of the Sections are satisfied.  The High Court, in our
\nview, gave an interpretation which would defeat the very purpose for which the
\nprovisions were enacted.  The impugned judgment wrongly interpreted Section 139 of
\nthe Act which is a presumption in favour of the holder.  Reading the judgment with
\nSection 139 of the Act, it would appear that the High Court has read in to Section 139 of
\nthe Act what is not contained in the Section.  Many passages of the judgments of the
\nHigh Court and of the learned Judicial Magistrate are direct off shoot of the wrong
\ninterpretation placed upon Section 139 of the Act and the High Court and the learned
\nJudicial Magistrate dwelt on extraneous factors and principles in order to bring the
\npresent case out of the purview of Section 138 of the Act.\n<\/p>\n
\tThe High Court while discussing the object of the Chapter dealing with offences
\nrelating with dishonour of the cheque and extensively quoting commentary by Author
\nDr. P.W. Rege, however, has failed to consider the important aspect which is discussed
\nat paragraph 16 which reads as under:\n<\/p>\n
“It is true that Negotiable Instruments Act has not failed to provide a remedy
\nfor the aggrieved party; but the foregoing provisions of the Act lay down a
\nprocedure which is in the first place very elaborate and since the remedy
\nwould be merely of a civil nature, the process to seek civil justice, in the
\nsecond place becomes notoriously dilatory.  To ensure promptitude in remedy
\nagainst defaulters, therefore, was the only way in which the element of
\ncredibility and dependability could be re-introduced in the practice of issuing
\nnegotiable instruments in the form of cheques.  The best way to do this was to
\nprovide a criminal remedy of penalty, which is just the thing that is sought to
\nbe done by the Amending Act.”\n<\/p>\n
\tTo fulfil the objective, the Legislature while amending the Act has made the
\nfollowing procedure:\n<\/p>\n
“(i)\tUnder Section 138 a deeming offence is created.\n<\/p>\n
(ii)\tIn Section 139, a presumption is ingrained that the holder of the
\ncheque received it in discharge of liability.\n<\/p>\n
(iii)\tDisallowing a defence in Section 140 that drawer has no reason to
\nbelieve that cheque would be dishonoured.\n<\/p>\n
(iv)\tAn explanation is provided to Section 138 to define the words “debt
\nor other liability” to mean a legally enforceable debt or other liability.”\n<\/p>\n
\tIf the aforesaid are borne in mind then the findings of the High Court are legally
\nperverse, namely, that Section 138 of the Act has application only in the case of
\ntransactions involving Mercantile relationship and the second being that the appellant
\nhas failed to prove the liability.  Paragraph 18 of the judgment of the High Court
\ncontains both the findings which  reads as under:\n<\/p>\n
“In this case no evidence or history being traced to show the relationship
\nbetween the complainant and respondent accused.  From the cross-
\nexamination it transpired that the respondent accused was working as the
\nManager of the Factory.  Thus, relation were Master and Servant or employee
\nor employer there being no business or commercial or mercantile relation
\nbetween the parties.”\n<\/p>\n
\tThe High Court, in our opinion, has failed to appreciate that on the facts of the
\ninstant case, the liability was a legally enforceable debt or liability as per the explanation
\nto Section 138 of the Act, therefore, the relationship between the appellant and the
\nrespondent was not at all a factor germane to the proceedings for an offence under
\nSection 138 of the Act.  The liability was legally enforceable debt is clear from the
\nfinding of the High Court at paragraph 19 which is quoted below:
\n “The Appellant-Company has attempted to short circuit the suit by compelling
\nthe accused respondent to pay the amount.”\n<\/p>\n
\tBoth the Courts, in our view, failed to consider the important aspect as to the
\nstop payment instructions issued by the respondent.  Ordinarily, the stop payment
\ninstructions are issued to the Bank by the account holder when there is no sufficient
\namount in the account.  In the present case, the reason for stopping the payment,
\nhowever, can be manifold.  It is essential that to issue stop payment instructions, there
\nmust be funds in the accounts in the first place.  On this aspect, the Courts below have
\nfailed to see whether as on the date of signing of the cheque dated 20.07.1992, the
\ndate of presentation of the cheque dated 10.01.1993, the date of writing of letter dated
\n12.02.1993 and the date on which stop payment instructions were issued to the Bank,
\nthe respondent has sufficient funds in the account.  Both the Courts below have held
\nthat after issuing the letter, the respondent has stopped the payment, therefore, no
\nmala fide can be attributed.  It is pertinent to notice that the appellant made an
\napplication to the Bank Manager to ascertain whether or not there was sufficient
\namount in the account for the payment dated 02.06.1995.  The learned Judicial
\nMagistrate disallowed the said application without hearing the complainant holding that
\nthere is no dispute about the dishonour of the cheque by the accused, therefore, no
\npurpose will be served by the Bank Manager as the dishonour is not in issue.  Had the
\nBank Manager been examined it would have been clear whether the account had
\nsufficient amount to pay the amount of the cheque or not.  It would have enabled also to
\nknow on what date stop payment order was sent by the drawer to the Bank.  The
\nlearned Magistrate committed a serious mistake in not allowing the application and the
\nproceedings passed thereon have suffered from serious infirmity going to the root of the
\nmatter.  The High Court and the learned Judicial Magistrate have also not noticed that
\nthe respondent was otherwise admitting the liability when the cheques were being
\nissued.  This was sufficient evidence to prove that there was a liability and as per the
\npresumption under Section 139 of the Act, the cheques issued, therefore, were towards
\nthe liability even as per the version of the respondent.  The relevant Section which is
\nSection 138 of the Act giving the ingredients of the offence.  In the opening words of the
\nSection it is stated:\n<\/p>\n
“Where any cheques drawn by a person on an account maintained by him
\nwith a bank for payment of any amount of money to any person from out of
\nthat account for the discharge in whole or in part, of any debt or other
\nliability.”\n<\/p>\n
\tBoth the Courts below have ignored the admission of the liability by the
\nrespondent who stated that the liability did exist but he was not responsible for it.  While
\nconsidering this, the Courts below treated the proof adduced by the respondent,
\nnamely, letter denying liability and that some other person is liable for it, as sufficient to
\nrebut the presumption under   Section 139 of the Act.  The Courts below have also not
\nconsidered that the accused had admitted that he was the Managing Director of the
\nappellant-Company when the liability arose.\n<\/p>\n
\tAnother reason given by the Courts below to reject the complaint was that the
\nappellant has suppressed the fact about the letter dated 12.02.1993.  In our view, there
\nis no obligation on the part of the appellant to reply to such letter as per the scheme of
\nSection 138 of the Act.\n<\/p>\n
\tCertain comments were made by the High Court in regard to the relationship of
\nthe parties.  For the cases filed under Section 142 of the Act for offence committed
\nunder the Act the relationship between the drawer and the drawee is not material
\nbecause the liability admitted is one which can be legally enforced by way of suit.\n<\/p>\n
 \tWe have perused the complaint also.  On the point of pleadings in the complaint,
\nthe complainant narrated all the necessary facts required to constitute offence under
\nSection 138 of the Act, therefore, there was no question of suppression of facts in the
\ncase as held by the learned Judicial Magistrate and the findings endorsed by the High
\nCourt.  The complainant narrated that the respondent owed the appellant a sum of
\nRs.40,000\/-.  The appellant has received post-dated cheque for the said amount.  The
\ncheque was presented to the Bank and was returned with the remark `stop payment’.
\nThe statutory notice was issued and was received by the respondent.  The respondent
\nnot having complied with the demand made, complaint was filed.
\n\tWe shall now advert to the rulings cited at the time of hearing.  Learned counsel
\nrelied upon paragraphs 13 to 16 of the judgment of this Court in the case of Modi
\nCements Ltd. Versus Kuchil Kumar Nandi, (1998) 3 SCC 249 (three-Judge Bench),
\nwhich read as under:\n<\/p>\n
“It was, however, contended on behalf of the respondent that the decision in
\nElectronics Trade & Technology Development Corpn. Ltd.  does not support
\nthe appellant as far as the facts that emerged in the present cases inasmuch
\nas the drawer had intimated to the bank on 8-8-1984 to stop the payment
\nwhereas the cheques were presented for encashment on 9-8-1994 although
\nthe same were drawn on 23-2-1994, 26-2-1994 and 28-2-1994.  The learned
\ncounsel for the respondent strongly relied upon the following observations in
\nElectronics Trade and Technology Development Corpn. Ltd.: (SCC p. 742,
\npara 6)
\n“Suppose after the cheque is issued to the payee or to the holder in
\ndue course and before it is presented for encashment, notice is issued to him
\nnot to present the same for encashment and yet the payee or holder in due
\ncourse presents the cheque to the bank for payment and when it is returned
\non instructions, Section 138 does not get attracted.”\n<\/p>\n
\t\t\t\t\t\t\t(emphasis supplied)
\n\tThe learned counsel for the appellant submitted that if the attention of
\nthe Court was drawn to the provisions of Section 139 of the Act which
\naccording to him, had an important bearing on the point in issue, the Court
\nwould certainly not have made the above observations.  The said section
\nreads as under:\n<\/p>\n
\t“139. Presumption in favour of holder.- It shall be presumed, unless
\nthe contrary is proved, that the holder of a cheque received the cheque, of the
\nnature referred to in Section 138 for the discharge, in whole or in part, of any
\ndebt or other liability.”\n<\/p>\n
\tAccording to the learned counsel if the observations of this Court in
\nElectronics Trade & Technology Development Corpn. Ltd. to the effect, (SCC
\np. 742, para 6)
\n\t“[s]uppose after the cheque is issued to the payee or to the holder in
\ndue course and before it is presented for encashment, notice is issued to him
\nnot to present the same for encashment and yet the payee or holder in due
\ncourse presents the cheque to the bank for payment and when it is returned
\non instructions, Section 138 does not get attracted”\n<\/p>\n
is accepted as good law, the very object of introducing Section 138 in the Act
\nwould be defeated.\n<\/p>\n
\tWe see great force in the above submission because once the cheque
\nis issued by the drawer a presumption under Section 139 must follow and
\nmerely because the drawer issues a notice to the drawee or to the bank for
\nstoppage of the payment it will not preclude an action under Section 138 of
\nthe Act by the drawee or the holder of a cheque in due course.  The object of
\nChapter XVII, which is intituled as “OF PENALTIES IN CASE OF
\nDISHONOUR OF CERTAIN CHEQUES FOR INSUFFICIENCY OF FUNDS
\nIN THE ACCOUNTS” and contains Sections 138 to 142, is to promote the
\nefficacy of banking operations and to ensure credibility in transacting business
\nthrough cheques.  It is for this reason we are of the considered view that the
\nobservations of this Court in Electronics Trade & Technology Development
\nCorpn. Ltd. in para 6 to the effect “Suppose after the cheque is issued to the
\npayee or to the holder in due course and before it is presented for
\nencashment, notice is issued to him not to present the same for encashment
\nand yet the payee or holder in due course presents the cheque to the bank for
\npayment and when it is returned on instructions, Section 138 does not get
\nattracted”, does not fit in with the object and purpose for which the above
\nchapter has been brought on the statute-book.”\n<\/p>\n
\tLearned counsel relied on paragraph 38 of the judgment of this Court in the case
\nof Hiten P. Dalal versus Bratindranath Banerjee, (2001) 6 SCC 16 which reads as
\nunder:\n<\/p>\n
“The burden was on the appellant to disapprove (sic disprove) the
\npresumptions under Sections 138 and 139, a burden which he failed to
\ndischarge at all.  The averment in the written statement of the appellant was
\nnot enough.  Incidentally, the defence in the written statement that the four
\ncheques were given for intended transactions was not the answer given by
\nthe appellant to the notice under Section 138.  Then he had said that the
\ncheques were given to assist the Bank for restructuring (Ext.H).  It was
\nnecessary for the appellant at least to show on the basis of acceptable
\nevidence either that his explanation in the written statement was so probable
\nthat a prudent man ought to accept it or to establish that the effect of the
\nmaterial brought on record, in its totality, rendered the existence of the fact
\npresumed, improbable.  (Vide Trilok Chand Jain vs. State of Delhi,<\/a> (1975) 4
\nSCC 761).  The appellant has done neither.  In the absence of any such proof
\nthe presumption under Sections 138 and 139 must prevail.”\n<\/p>\n
\tLearned counsel also relied on paragraph 7 of the judgment of this Court in the
\ncase of K.N. Beena Versus Muniyappan & Another  (2001) 8 SCC 458 which reads
\nas under :\n<\/p>\n
“In this case admittedly the Ist respondent has led no evidence except some
\nformal evidence.  The High Court appears to have proceeded on the basis
\nthat the denials\/averments in his reply dated 21.5.1993 were sufficient to shift
\nthe burden of proof on to the appellant complainant to prove that the cheque
\nwas issued for a debt or liability.  This is an entirely erroneous approach.  The
\nIst respondent had to prove in the trial, by leading cogent evidence, that there
\nwas no debt or liability.  The Ist respondent not having led any evidence could
\nnot be said to have discharged the burden of proving that the cheque was not
\nissued for a debt or liability, the conviction as awarded by the Magistrate was
\ncorrect.  The High Court erroneously set aside that conviction.”\n<\/p>\n
Learned counsel placed reliance on paragraph 6 of the judgment of this Court in
\nthe case of Goaplast (P) Ltd. Versus Chico Ursula D’Souza & Another, (2003) 3
\nSCC 232 which reads as under:\n<\/p>\n
“In the present case the issue is very different.  The issue is regarding
\npayment of a post-dated cheque being countermanded before the date
\nmentioned on the fact of the cheque.  For the purpose of considering the
\nissue, it is relevant to see Section 139 of the Act which creates a presumption
\nin favour of the holder of a cheque.  The said section provides that:
\n\t“139.  It shall be presumed, unless the contrary is proved, that the
\nholder of a cheque received the cheque, of the nature referred to in Section
\n138 for the discharge, in whole or in part, of any debt or other liability.”\n<\/p>\n
Thus it has to be presumed that a cheque is issued in discharge of any debt
\nor other liability.  The presumption can be rebutted by adducing evidence and
\nthe burden of proof is on the person who wants to rebut the presumption.
\nThis presumption coupled with the object of Chapter XVII of the Act which is
\nto promote the efficacy of banking operation and to ensure credibility in
\nbusiness transactions through banks persuades us to take a view that by
\ncountermanding payment of post-dated cheque, a party should not be allowed
\nto get away from the penal provision of Section 138 of the Act.  A contrary
\nview would render Section 138 a dead letter and will provide a handle to
\npersons trying to avoid payment under legal obligations undertaken by them
\nthrough their own acts which in other words can be said to be taking
\nadvantage of one’s own wrong.  If we hold otherwise, by giving instructions to
\nbanks to stop payment of a cheque after issuing the same against a debt or
\nliability, a drawer will easily avoid penal consequences under Section 138.
\nOnce a cheque is issued by a drawer, a presumption under Section 139 must
\nfollow and merely because the drawer issued notice to the drawee or to the
\nbank for stoppage of payment it will not preclude an action under Section 138
\nof the Act by the drawee or the holder of the cheque in due course.  This was
\nthe view taken by this Court in Modi Cements Ltd. v. Kuchil Kumar Nandi,<\/a>
\n(1998) 3 SCC 249.  On same facts is the decision of this Court in Ashok
\nYeshwant Badave vs. Surendra Madhavrao Nighojakar,<\/a> (2001) 3 SCC 726.
\nThe decision in Modi case overruled an earlier decision of this Court in
\nElectronics Trade & Technology Development Corpn. Ltd. v. Indian
\nTechnologists & Engineers (Electronics) (P) Ltd.,<\/a> (1996) 2 SCC 739 which
\nhad taken a contrary view.  We are in respectful agreement with the view
\ntaken in Modi case.  The said view is in consonance with the object of the
\nlegislation.  On the faith of payment by way of a post-dated cheque, the payee
\nalters his position by accepting the cheque.  If stoppage of payment before
\nthe due date of the cheque is allowed to take the transaction out of the
\npurview of Section 138 of the Act, it will shake the confidence which a cheque
\nis otherwise intended to inspire regarding payment being available on the due
\ndate.”\n<\/p>\n
\tReliance was also placed on paragraph 17 of the judgment of this Court in the
\ncase of M.M.T.C. Ltd. and Another Versus Medchl Chemicals and Pharma (P) Ltd.
\nand Another, (2002) 1 SCC 234 which reads  as under:\n<\/p>\n
“There is therefore no requirement that the complainant must specifically
\nallege in the complaint that there was a subsisting liability.  The burden of
\nproving that there was no existing debt or liability was on the respondents.
\nThus they have to discharge in the trial.  At this stage, merely on the basis of
\naverments in the petitions filed by them the High Court could not have
\nconcluded that there was no existing debt or liability.”\n<\/p>\n
\tWe are unable to agree with the reasonings adopted by the Courts below.  The
\njudgments of the High Court and the learned Judicial Magistrate are set aside.  We hold
\nthat Section 138 of the Act will be attracted in the facts of the case and a case for
\npunishment under the provisions is made out.\n<\/p>\n
\tIn the instant case, the cheque issued by the respondent has been stopped for
\npayment on his instructions and the cheque was returned to the appellant unpaid.  In
\nview of our discussion in the foregoing paragraphs and on the consideration of the facts
\nand circumstances of the case and the law on the subject, we hold that the respondent
\nshall be deemed to have committed an offence.   When the matter was taken up for
\nfurther hearing on 17.11.2003, learned counsel for the respondent submitted that this
\nCourt may consider the case of the respondent and the reason for his inability to pay
\nthe amount and may consider imposing lesser sentence by taking a lenient view.  We
\nare unable to countenance the said submission for the various reasons stated supra.
\nWe have no doubt that the respondent has committed an offence punishable under the
\nprovisions of Section 138 of the Act and is liable to be punished.  The transaction in
\nquestion took place between the parties in the year 1993, therefore, Section 138, as it
\nstood at the relevant time, would be applicable to the present case.  Section 138
\nprovides imprisonment for a term which may extend to one year, or with fine which may
\nextend to twice the amount of the cheque, or with both.  Section 138 has now been
\namended and the penalty of imprisonment for a term which may extend to one year has
\nbeen substituted to two years as provided by the Amending Act of 2002 and the fine
\nwhich may extend to twice of the amount of the cheque.  This has been prescribed as
\nthe punishment for the offence under Section 138 of the Act.\n<\/p>\n
The object and the ingredients under the provisions, in particular, Sections 138
\n& 139 of the Act cannot be ignored.  Proper and smooth functioning of all business
\ntransactions, particularly, of cheques as instruments, primarily depends upon the
\nintegrity and honesty of the parties.  In our country, in a large number of commercial
\ntransactions, it was noted that the cheques were issued even merely as a device not
\nonly to stall but even to defraud the creditors.  The sanctity and credibility of issuance of
\ncheques in commercial transactions was eroded to a large extent.  Undoubtedly,
\ndishonour of a cheque by the Bank causes incalculable loss, injury and inconvenience
\nto the payee and the entire credibility of the business transactions within and outside
\nthe country suffers a serious set back.  The Parliament, in order to restore the credibility
\nof cheques as a trustworthy substitute for cash payment enacted the aforesaid
\nprovisions.  The remedy available in a Civil Court is a long drawn matter and an
\nunscrupulous drawer normally takes various pleas to defeat the genuine claim of the
\npayee.\n<\/p>\n
\tWe, therefore, grant one month’s time from this date to the respondent herein to
\npay a sum of Rs.80,000\/- (twice the amount of the cheque) by way of Demand Draft
\ndrawn in favour of the appellant and payable at Goa (in the address given in the paper
\nbook).  In default thereof, the respondent shall suffer simple imprisonment for six
\nmonths.\n<\/p>\n
\t  In the result, the appeal stands disposed of.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Goa Plast (P) Ltd vs Chico Ursula D’Souza on 20 November, 2003 Author: . A Lakshmanan Bench: B.P. Singh, Dr. Ar. Lakshmanan. CASE NO.: Appeal (crl.) 1968 of 1996 PETITIONER: Goa Plast (P) Ltd. RESPONDENT: Chico Ursula D’Souza DATE OF JUDGMENT: 20\/11\/2003 BENCH: B.P. Singh & Dr. AR. Lakshmanan JUDGMENT: J […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-38538","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nGoa Plast (P) Ltd vs Chico Ursula D'Souza on 20 November, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/goa-plast-p-ltd-vs-chico-ursula-dsouza-on-20-november-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Goa Plast (P) Ltd vs Chico Ursula D'Souza on 20 November, 2003 - 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