Ashok Mundargi Shirish Gupte

1 (C.J. ) in Cri. Appeal Nos.
159,160, 161 and 162 of 2012
Received on 03-10-2012
Registered on 03-10-2012
Decided on 05-12-2016
Duration Y. M. Ds.
4 2 2
IN THE COURT OF THE SESSIONS JUDGE,

AT KOLHAPUR.
( Presided over by R.G. Avachat )
Criminal Appeal No. 159/2012 Ex. No 28/A
1. M/s. Asmeet Enterprises,

A registered Partnership Firm
Acme Ghar, 19, K.D. Road,
Vile Parle (W)
Mumbai
2. Pravin Amidas Mehta, Age: 62,

Occupation : Business,
R/o. 1St Floor, Prajan, 5th Road,
JVPD Scheme, Juhu Mumbai
3. Munish Pravin Doshi, Age: 42

Occupation Business,
Asha Kiran, Lajpatrai Road,
Vile Parle(W), Mumbai
4. Pravin Himmatlal Doshi, Age: 69,

R/o. As above, Mumbai
… Appellants
( Orig. accused )
2 (C.J. ) in Cri. Appeal Nos. 159,160, 161 and 162 of 2012
V/s.
1. Shri. Bhavin Chandrakant Mehta

Through Power of Attorney,
Chandrakant Dhirajlal Mehta, Age: 76,
R/o. 35, Shivaji Park, Kolhapur
2. State of Maharashtra,
Through Public Prosecutor,
District Court, Kolhapur.
(Through Public Prosecutor,
District Court, Kolhapur.)
… Respondents
( Orig. complainant )
Criminal Appeal No. 161/2012 Ex. No. 24/A
1. M/s. Ascent Associates,

A registered Partnership Firm
Acme Ghar, 19, K.D. Road,
Vile Parle (W)
Mumbai
2. Pravin Amidas Mehta, Age: 62,

R/o. 1St Floor, Prajan, 5th Road,
JVPD Scheme, Juhu Mumbai
3. Munish Pravin Doshi, Age: 42

Asha Kiran, Lajpatrai Road,
Vile Parle(W), Mumbai
4. Ketan Jayantilal Mehta, Age: 48,

R/o. Sai-Aditya Apartment, A wing
3-floor, D. N. nagar, Andheri,(W)
Mumbai
… Appellants
( Orig. accused )
V/s.
1. Shri. Bhavin Chandrakant Mehta

Through Power of Attorney,
Chandrakant Dhirajlal Mehta, Age: 76,
R/o. 35, Shivaji Park, Kolhapur
2. State of Maharashtra,
Through Public Prosecutor,
District Court, Kolhapur.
(Through Public Prosecutor,
District Court, Kolhapur.)
… Respondents
( Orig. complainant )
Shri. Shirish Gupte, Shri. A.P. Mundargi, Senior Advocates

and Dr. Shri. Santosh Shaha, Advocate, for the appellants
Shri.P.J.Wagh & Shri.P.N.Patil, Advocates for the respondent No. 1
None appeared for the respondent No. 2
- COMMON JUDGMENT -
( Delivered on 5th December, 2016 )
These four appeals are filed by the appellants/accused

challenging the legality and correctness of the Judgments and
orders dated 27-09-2012 passed by the Court of the Judicial
Magistrate First Class, Kolhapur ( the J.M.F.C.) Kolhapur in Sum.
Cri. Case Nos. 1381, 1380, 1713 and 1348 of 2003.
1. Present appeals arise out of the complaints filed by the

respondent/complainant in the Court of the J.M.F.C., Kolhapur,
under Section 138 of the Negotiable Instruments Act, 1881 ( for
short “the N.I. Act” ) against the appellants/accused. The
respondent/complainant is United State of America based Non
Resident Indian ( N.R.I ). The appellant No. 1/accused No. 1 in
these appeals are sister concern partnership firms. These two firms
are in the business of building, construction and developers and
sale of flats/commercial blocks in Mumbai. The appellant Nos. 2 to
4 in all the four appeals are stated to be the partners of both the
firms. Both the accused firms are alleged to have had issued four
cheques in favour of the complainant/respondent towards
repayment of part of consideration amount, with interest thereon on
account of failure of two flats purchase transactions. Three
cheques ( Nos.790214, 790213 and 790212) are the subject matters
of Sum. Cri. Case Nos. 1348, 1380 and 1381 of 2003 respectively.
These cheques had admittedly been issued by the firm M/s. Asmit
Enterprises, the appellant/accused No. 1. These three cheques for
Rs. 3,00,000/- each were issued on 31st July, 2002. While the
cheque No. 796836 dated 30/09/2002 had admittedly been issued
by the firm M/s. Ascent Enterprises, appellant/accused No. 1. As
such Sum. Cri. Case Nos. 1380, 1381 and 1348 of 2003 were
instituted in connection with the cheques issued towards part
repayment of the amount of consideration and interest, in respect of
flat No. 701 in Amrataru Apartment. While the cheque in Sum. Cri.
Case No. 1713/2003 was issued in respect of the transaction for
purchase of flat No. 101 in Ascent Residency. Since the
complainant in all the four criminal cases is one and the same, and
the accused persons therein are common, these four appeals are
decided by this common Judgment. Moreover, the transactions in
connection with which the cheques were issued are stated to be
interconnected.
2. It is alleged by the respondent/complainant in the

complaint in Sum. Cri. Case No. 1380, 1381 and 1348 of 2003 that
an agreement for sale of flat No. 701 was executed on 11-03-2000,
between him and M/s. Asmit enterprises. The complainant paid
M/s. Asmit Enterprises entire amount of consideration of Rs.
27,69,250/-. The appellant/accused, however, sold the flat to some
third person, keeping the complainant in dark. On negotiations, the
accused persons agreed to pay the complainant entire amount of
consideration with 18% interest thereon. Towards repayment of
said amount, three cheques of Rs. 3,00,000/- each were therefore
issued. The complainant presented said cheques for encashment
through its Bankers, Ichalkaranji Janta Co-operative Bank,
Kolhapur. The cheques returned unpaid on 30-01-2003 for the
reason “payment stopped by the drawer”. The complainant,
therefore, issued a statutory demand notice dated 10-02-2003, and
called upon the appellants/accused to pay the amount covered by
the cheques.
3. Towards repayment of the consideration amount

regarding purchase of flat No. 101, a cheque for Rs. 5,00,000/-
dated 30-09-2002, bearing No. 796836 was issued. The
complainant presented said cheque for encashment through its
Bankers Ichalkaranji Janta Co-operative Bank, Kolhapur. The

cheque returned unpaid on 05-02-2003 for the reason “payment
stopped by the drawer”. The complainant, therefore, issued a
statutory demand notice dated 14-02-2003, and called upon the
appellants/accused to pay the amount covered by the cheque.
4. Inspite of service of notice on the appellants, they

failed and neglected to make payment of the amount of aforesaid
four cheques within stipulate period of 15 days. Stipulated period
expired on 4th March 2003. The respondent/complainant, therefore,
filed four criminal complaints against the appellants/accused U/s.
138 of the N.I. Act.
5. The Learned J.M.F.C. Kolhapur, took cognizance of

the offence and issued process against the appellants/accused. In
response to the summons issued in all four cases, the
appellants/accused entered their appearance. The trial Court
recorded the plea, The appellants/accused pleaded not guilty.
6. To bring home the guilt of the appellants/accused, the

complainant examined his duly constituted Power of
Attorney( P.O.A), his father Chandrakant. As against this, three
witnesses came to be examined in defence of the
appellants/accused.
7. The trial Court, after appreciating the evidence on

record, was pleased to find the respondent/complainant to have
brought home the charge/s against all the appellants/accused. The
trial Court passed separate Judgments in all the four cases

convicting the appellants/accused for the offence punishable
under Section 138 of the N.I. Act. Since the appellant/accused No.
1 in all the four cases were juristic person, no sentence of
imprisonment has been imposed. The appellant 2 to 4 in all the four
appeals came to be sentenced to suffer rigorous imprisonment for
six months, in each of the cases. They have also been directed to
pay, jointly and severally, the complainant the amount under each
of the four cheques as compensation.
8. The Judgments of conviction dated 27-09-2012 passed

in all the four summary criminal cases are impugned in these four
appeals.
9. Heard Shri. Shirish Gupte, Shri. A.P. Mundargi

Learned Senior Advocates and Shri. Santosh Shaha, Learned
Advocate appearing for the appellants/accused. Also heard Shri.
P.J. Wagh and Shri.P. N. Patil, Learned Advocates appearing for
the complainant/respondent. Both the complainant and the accused
have also produced written submissions.
10. The submissions made for and on behalf of the

appellants/accused are -
1. No averments describing role of the accused Nos. 2
to 4 are stated in the complaint, to invoke Section 138 of the
N.I.Act against them .
2. Very many facts have been suppressed.
3. Cheques have been dis-honoured on account of
stop payment instructions.

4. There was sufficient balance in the Bank A/c of the
accused firms, when the cheques were presented for encashment.
5. The accused firms had legitimate reason to give
such instruction.
6. Respondent/complainant had been informed in
writing not to present the cheques for encashment. He was asked to
return the cheques.
7. The cheques were issued as security towards
completion of sale transaction in respect of flat No. 102.
8. After taking of the account, the
respondent/complainant owed accused firm Rs. 13,42,630/-.
9. Non-examination of the original complainant
Bhavin Mehata was prejudicial to the accused in their defence.
10. The evidence of the P.O.A of the complainant is
inadmissible, being hearsay.
11. The P.O.A dated 15-01-2002 has not been duly
proved, hence the P.O.A. was not competent to depose.
12. The affidavit of evidence of P.W. 1 Chandrakant is
inadmissible in evidence for want of proper verification.
13. Accused Pravin Mehata had retired long before the alleged
offence/s took place.
14. The trial Court did not pass the order directing the
sentences to run concurrently. Same caused prejudice and injustice
to the accused. Rigorous imprisonment has been awarded without
giving any reason therefor.
11. Shri. P.G. Wagh, Learned Advocate for the

respondent/complainant, countered the submissions made by
Learned Senior Counsel appearing for the accused. Learned
Advocate for the respondent produced a chart containing
calculations to indicate that the accused firm did owe much more
amount to the complainant/respondent, and the cheques were
issued towards repayment thereof in part. In view of Learned
Advocate, the complaints have been filed by the payee of the
cheques through his power of attorney. The law as its stand to-day,
permit filing of the complaint through P.O.A. P.W. 1 Chandrakant,
the P.O.A. of the complainant had been a party to all the relevant
transactions between the complainant and the accused persons. The
P.O.A. has personal knowledge of all the facts and circumstances
of the case. What has been deposed to by him was first hand
account. Learned Advocate Shri. P.G. Wagh, took me through
chronology of the events started from 31st July, 1996 to the dates of
the issuance of the cheques, and ultimately submitted that the
cheques were issued in discharge of legally enforceable debt.
Instead of detaining myself to the oral submissions

advanced by Learned Advocate for the respondent/complainant, it
would be apposite to advert thereto while appreciating the
evidence on record. In short, learned Advocate for the
respondent/complainant would submit that the trial Court has
passed well reasoned Judgments and the same therefore, do not
call for interference.
12. Following points arise for determination. The findings

thereon with the reasons therefor are also given below.
Sr.No Points Findings
1. Whether the complaints lack necessary ..No ..
avermens so as to bring the accused Nos. 2 to 4
therein in a dragnet of S. 138 R/W. S. 141 of
the N.I. Act ?
2. Whether the instrument of power of attorney ..Yes..
has been duly established ?
3. Whether the affidavit of evidence in ..No ..
Examination-in-Chief of the P.O.A. is
inadmissible in evidence for want of proper
verification ?
4. Did the complainant prove that the accused ..No ..
persons committed the offence/s of dis-honour
of the cheques, punishable U/s. 138 of the N. I.
Act ?
5. Whether interference with the impugned ..Yes ..
Judgments is called for ?
6. What order? As per
final order.
- REAS ONS -
Point No. 1
13. In the case of S.M.S. Pharmaceuticals Ltd V/s. Neeta
Bhalla, 2005 DG.L.S.(Soft.) 753, the Hon'ble Supreme Court has
observed as under :
“It is necessary to specifically aver in a
complaint under Section 141 that at the time the
offence was committed, the person accused was in
charge of, and responsible for the conduct of
business of the company. This averment is an
essential requirement of Section 141 and has to be
made in a complaint. Without this averment being
made in a complaint, the requirements of Section
141 cannot be said to be satisfied.

To sum up, there is almost unanimous
judicial opinion that necessary averments ought to
be contained in a complaint before a person can
be subjected to criminal process. A liability under
Section 141 of the Act is sought to be fastened
vicariously on a person connected with a
Company, the principal accused being the
company itself. It is a departure from the rule in
criminal law against vicarious liability. A clear
case should be spelt out in the complaint against
the person sought to be made liable. Section 141
of the Act contains the requirements for making a
person liable under the said provision. That
respondent falls within parameters of Section 141
has to be spelt out. A complaint has to be
examined by the Magistrate in the first instance
on the basis of averments contained therein. If the
Magistrate is satisfied that there are averments
which bring the case within Section 141 he would
issue the process. We have seen that merely being
described as a director in a company is not
sufficient to satisfy the requirement of Section 141.
Even a non director can be liable under Section
141 of the Act. The averments in the complaint
would also serve the purpose that the person
sought to be made liable would know what is the
case which is alleged against him. This will
enable him to meet the case at the trial. The
conclusion is inevitable that the liability arises on
account of conduct, act or omission on the part of
a person and not merely on account of holding an
office or a position in a company. Therefore, in
order to bring a case within Section 141 of the Act
the complainant must disclose the necessary fact
which make a person liable. ”
14. For the sake of convenience, the evidence in Sum.

Cri. Case No. 1381/2003 is referred to. Let us advert to the
averments made in the complaint. In para No. 1 of the complaint it
has been averred that the accused No. 1 is the partnership firm and
the accused Nos. 2 to 4 are its partners. It has specifically been
averred in para No. 2 of the complaint that the accused persons
named in the complaint entered into an agreement with the
complainant on 11-03-2000. The accused persons received Rs.
27,69,250/- from the complainant, under the said agreement for the
sale of flat No. 701. The accused, however, sold said flat to some
one else keeping him in dark. After having learnt about the sale of
said flat, the complainant started making inquiry with the accused
persons. The accused gave false and flippant replies. In para No. 3
of the complaint, it has been recited that towards part repayment of
the amount of consideration, the accused persons issued the cheque
on 31st July, 2002. Since the cheque returned unpaid, after its
presentation for encashment, the complainant issued statutory
demand notice calling upon all the accused persons to pay the
amount covered by the cheques. Despite receipt of the notice on
10-02-2003, the accused did not pay the complainant the amount
under the cheques.
15. Verification statement of the P.O.A of the complainant

is to the effect that “the averments made in the compliant are true
and correct. Thus, the accused persons committed the offence of
dis-honour of the cheques.”
16. There is evidence to indicate that the statutory demand

notice had been served upon all the accused persons. The accused
Nos. 2 to 4 did not respond. The accused firm replied the notice.
The notice reply, however, is silent to state in so many words that
the accused Nos. 2 to 4 were not active partners of the firm. On the
contrary, the defence witness Hemant Joshi has admitted in no
uncertain terms that the accused Nos. 3 and 4 are the controlling
members of four entities, including M/s. Asmit Enterprises and M/s
Ascent Associates ( complainant firms). The cheque, which is the
subject matter of sum. Cri. Case No. 1713/2003 has been signed by
the accused Nos. 3 and 4. Whereas other three cheques have been
signed by the accused No. 4. All the three accused were examined
U/s. 313 of the Cr.P.C. All of them admitted to be the partners of
the firms. Before the trial Court, none of them came with defence
of being sleeping partners or having not been incharge of or
responsible to the firms for the conduct of the business of both
firms. The order of issuance of process had been challenged before
the Sessions Court in revision, and then the matter was taken to the
Hon'ble high Court as well. Had really the accused Nos. 2 to 4 not
been incharge of the affairs of both the firms they would have
immediately come with such a defence at the earliest point of time.
On the contrary, the evidence on record indicates the accused Nos.
2 to 4 to have been in the management and control over the
business of both the firms. It is true that, by virtue of Section 141
of the N.I. Act-
141. Offence by companies-(1) if the person
committing an offence under section 138 is a
company, every person who, at the time of the
offence was committed, was incharge of, and was
responsible to the company for the conduct of the
business of the company, as well as the company,
shall be deemed to be guilty of the offence and
shall be liable to be proceeded against and
punished accordingly.
Provided that nothing contained in this sub-section

shall render any person liable to punishment if he
proves that the offence was committed without his
knowledge, or that he had exercised all due
diligence to prevent the commission of such
offence.
(Provided further that where a person is
nominated as a Director of a company by virtue of
his holding any offence or employment in th
Central Government or State Government or a
financial corporation owned or controlled by the
Central Government or the State Government, as
the case may be, he shall not be liable for
prosecution under this Chapter).
(2) Notwithstanding anything contained
in sub-section (1), where any offence under this Act
has been committed by a company and it is proved
that the offence has been committed with the
consent or connivance of, or is attributable to, any
neglect on the part of, any director, manager,
secretary or other officer of the company, such
director, manager, secretary or other officer shall
also be deemed to be guilty of that offence and
shall be liable to be proceeded against and
punished accordingly.
Explanation-For the purposes of this section,-

(a) “company” means any body corporate
and includes a firm or other association of
individuals; and
(b) “director” in relation to a firm, means a
partner in the firm”
17. Law does not prescribe defined phraseology to be

incorporated in the complaints instituted for the offence
punishable U/s. 138 R/W S. 141 of the N.I. Act. It is reiterated
that the complaint contained necessary recitals attributing the role
of the accused Nos. 2 to 4 in the alleged offence. Accused No. 2
Pravin Mehta is stated to have resigned as partner of the firms,

long before the alleged offence took place. Some documents came
to be tendered in evidence in that regard. Those all are private
documents. Pravin did not examine himself on oath. True, it is not
mandatory for him to enter the witness box. The fact, however,
remains that in answer to the question No. 2 put to him in his
examination U/s. 313 of the Cr.P.C, he admitted to be the partner
of the firms.
The accused Nos. 2 to 4 therefore, cannot be heard to

say that the complaints lacked necessary averments attributing
incriminating circumstances against them. The accused have met
complainant's case threadbare. Therefore, there is no question of
them taking it by surprise or prejudiced in their defence. True, the
Trial Court convicted the accused Nos. 2 to 4 for the offence U/s.
138 of the N.I. Act simplicitor. The trial Court did not make
mention of Section 141 along with Section 138 of the N.I. Act
while holding the accused Nos. 2 to 4 guilty of the offence. In the
totality of the facts and circumstances of the case, same is found to
be mere irregularity. It leads me to ultimately hold that the
complaints contained averments to bring the accused Nos. 2 to 4
within the term of S. 138 R/W. S.141 of the N.I. Act. The point No.
1, is, therefore, answered in the negative.
Point Nos. 2 and 3.

18. The complainant is U.S.A. based N.R.I. He filed the
complaints through his constituted attorney, Chandrakant Mehta.
Chandrakant examined himself on oath. He produced on record his
affidavit of evidence. In his Examination-in Chief, he has testified

that his son Bhavin( complainant) appointed him as an attorney.
Bhavin executed power of attorney on 15-01-2002. He tendered in
evidence a copy of power of attorney. Chandrakant identified
Bhavin's signature appearing thereon as the executant. While the
instrument of P.O.A. came to be admitted in evidence, the defence
did not raise any objection. The accused persons are, therefore,
estopped from taking any exception to the instrument appointing
Chandrakant to be the power of attorney of complainant, Bhavin.
19. Affidavit of Examination in Chief of P.O.A.

Chandrakant has also been taken exception to on the ground that it
lacks legal verification.
20. P.O.A Chandrakant has verified his affidavit of

evidence stating that the matters contained in para Nos. 1 to 8 of
the affidavit are true and correct as per his information and belief.
During verification statement like the word True, the verification
statement lack the word 'personal'. Learned Advocate for the
defence meant to say that P.O.A Chandrakant did not state that the
matter in his affidavit of evidence is based on his personal
information. Said affidavit is, therefore, inadmissible. The
objections in this regard is stated to be rejected simply on the
ground that P.O.A Chandrakant was subjected to extensive cross-
examination by the defence. Admittedly, the complainant had been
in U.S.A. while all the transactions took place between him and
the accused persons, P.O.A Chandrakant had represented the
complaint in all those transactions. All the agreements entered into

between the complainant and the accused firms post 1996 have
been signed by the P.O.A. It therefore cannot be said that the
matter of evidence in the affidavit of Chandrakant is inadmissible
in evidence as being not based on his personal information. The
point Nos. 2 and 3 are answered accordingly.
Point No. 4
21. These being appeals from conviction, the Court sitting
in appeal is supposed to re-appreciate the entire evidence on
record. Before adverting to the factual matrix, let us refer to the relevant
provisions of Chapter XVII of the N.I.Act. The Chapter speaks of
penalties in case of dishonour of certain cheques for insufficiency of
funds in the account.
Sec.138–Dishonour of cheque for insufficiency,etc.,of
funds in the account -
Where any cheque drawn by a person on an
account maintained by him with a banker for payment of
any amount of money to another person from out of that
account for the discharge, in whole or in part,of any debt
or other liability, is returned by the bank unpaid, either
because of the amount of money standing to the credit of
that account is insufficient to honour the cheque or that it
exceeds the amount arranged to be paid from that account
by an agreement made with that bank, such person shall
be deemed to have committed an offence and shall,
without prejudice to any other provision of this Act, be
punished with imprisonment for a term which may be
extended to two years, or with fine which may extend to
twice the amount of the cheque, or with both;
Provided that nothing contained in this section
shall apply unless -
(a) the cheque has been presented to the bank
within a period of six months from the date on which it is
drawn or within the period of its validity, whichever is
earlier;
(b) the payee or the holder in due course of the

cheque, as the case may be,makes a demand for the
payment of the said amount of money by giving a notice in
writing, to the drawer of the cheque, (within thirty days)
of the receipt of information by him from the bank
regarding the return of the cheque as unpaid, and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee or as
the case may be, to the holder in due course of the cheque
within fifteen days of the receipt of the said notice.
Explanation – For the purposes of this section, “debt or
other liability” means a legally enforceable debt or other
liability.
Sec.139 – Presumption in favour of holder :-
It shall be presumed, unless the contrary is proved,

that the holder of a cheque received the cheque, of the
nature referred to in section 138, for the discharge, in
whole or in part, of any debt or other liability.
S.138 does not run counter to the basic

principles of criminal law that an accused must be
presumed to be innocent. Ss.138 and 139 will come
into play only on the existence of certain basic facts
and circumstances. In such a case, it cannot be
contended that the general fundamental rule that a
person is presumed to be innocent unless and until
he is proved to be guilty, cannot apply. Ss.138 and
139 are only in consonance with the definition
contained in S.4 of the Evidence Act.
Conditions Precedent –
The ingredients which are to be satisfied for making
out a case u/s 138,Negotiable Instruments Act are :
(i) a person must have drawn a cheque on an
account maintained by him in a bank for payment of a
certain amount of money to another person from out of
that account for the discharge of any debt or other
liability,
Dishonour of a cheque is by itself not an offence u/s

138. To come within the purview of the section certain
other requirements have to be fulfilled. They are :
(1) the cheque has to be towards payment of an

amount of money for the discharge in whole or in part of
any debt or any other liability.
(2) the cheque is returned by the bank unpaid,
(3) the reason for non-payment of the cheque
should be insufficiency of funds or amount of cheque
exceeding the amount arranged to be paid from the
account. But before the offence can be said to be made out
the proviso to the section requires that :
(a) the cheque must be presented to he bank within
a period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier,
(b) the payee or the holder in due course of the
cheque makes a demand for he payment of amount of
money under the cheque by giving a notice in writing to
the drawer of the cheque within 15 days of information
received by him from the bank regarding dishonour of the
cheque,
(c) the drawer of the cheque fails to make payment
of the amount of money within 15 days of the receipt of
said notice.
As S.138 incorporates strict liability. Being a penal provision, it has

to be construed strictly.
22. Admittedly, the cheques have been issued/drawn by

both the firms on the accounts maintained by them with their
Banker Indian Overseas Bank, Bombay. Since the facts of issuance
of the cheques have been admitted, the statutory presumption U/s.
139 of the N.I. Act come into play. It shall, therefore, in the first
instance be presumed that the holder of the cheques
(respondent/complainant) received the cheques of the nature
referred to in Section 138 of the N.I. Act, for discharge in whole or
in part of any debt or other liability. For issuance of three cheques
Nos. 790212, 790213 and 790214, the consideration set out in the
complaint is repayment of earnest amount with interest thereon as

is became payable under the agreement for sale dated 11-03-2000
executed between the complainant and M/s. Asmeet Enterprises
(A-1). While the consideration for issuance of the cheque No.
796836 is also repayment of earnest amount with interest thereon
as is became payable under the agreement for sale dated 11-03-
2000, executed between the complainant and M/s. Ascent
Associates (A-1).
23. It is reiterated that, the complainant came with a case

that the accused agreed to sell flat Nos. 701 and 101 to the
complainant on 11-03-2000. The agreements for sale of those flats
came into being in writing ( Ex. 41 and 47 in SCC No. 1713/03
respectively). It is the case of the complainant that the possession
of the flats was to be delivered to him by April, 2001. The accused
persons, however, sold both the flats to some third person behind
the back of the complainant. After having learnt the same, the
complainant through his P.O.A. went to the accused persons, who
in turn agreed to return the amount of consideration received under
both the agreements for sale, with 18% interest thereon. Towards
part repayment of said amount, the cheques came to be issued. The
complainant tendered in evidence both the agreements vide Ex.
41 and 47 in SCC No. 1713/03 respectively
24. P.O.A. Chandrakant came to be extensively cross-

examined. Very many transactions between the complainant and
the accused persons came to fore as a result of the answers given
by him during his cross examination. Same indicates that the
complainant had suppressed very many facts. In view of this Court,

the transactions between the complainant and the accused persons
were that of either investment or money lending. The evidence on
record indicates that there is ACME group. It is in the business of
building/construction and transfer of the immovable properties. It
is Mumbai based group. It has business in crores of rupees. The
group had about 55 current accounts with its Banker, Indian
Overseas Bank, Mumbai. Following are the subsidiaries of ACME
Group.
1. Acme Sthapati Ltd.
2. Well-build Realtors Pvt. Ltd.
3. M/s. Asmit Enterprises and
4. M/s. Ascent Associates.
25. The complainant had entered into an agreement for

purchase of Flat ( No. 402-A) in ACME Plaza for consideration of
Rs. 29,40,000/-. The agreement for sale was executed on 31 st July,
1996. The copy thereof is at Ex. 128. The recitals of the said
agreement would indicate that the complainant had agreed to buy
65% area of the commercial premises, namely as Flat No. 402-A. It
is just illogical to imagine that a buyer would agree to buy only
some part of one room block/premises, for his own occupation. It
is stated herein itself that all these facts have come on record
during the cross examination of P.W. 1 Chandrakant. It was infact
expected of him to aver all these facts in the complaint, and then
try to rely on the evidence which has come on record during his
cross examination. Complainant Bhavin was in India on 31 st July,
1996. He personally entered into the agreement for purchase of
65% area of flat No. 402-A in ACME Plaza. Admittedly, the

complainant cancelled said agreement on 11-03-2000. Deed of
cancellation came into being ( Ex. 58 ).It was executed between
him, through his P.O.A. Chandrakant and Welbuild Realtors Pvt.
Ltd and ACME Sthapati Ltd. On the same day i.e. on 11-03-2000
the agreement for sale of Flat No. 701 and 101 came to be
executed between the complainant on one hand and Asmit
Enterprises and Ascent associates on the other. The recitals of both
the agreements for sale would indicate that the consideration
amount/sale price for flat No. 701 was fixed at Ex. 27,69,250/-.
While consideration amount for flat No. 101 was Rs. 17,98,200/-.
The recitals of both the agreements indicate that vendor firms
received the amounts of consideration some time before the
execution of those agreements. There are also receipts executed for
and on behalf of Asmit Enterprises and Ascent Associates,
acknowledging receipts of the amount of consideration. There is,
however, no shred of evidence to indicate that the amount of
consideration paid towards Flat No. 701 and 101 was paid by the
cheque or the demand draft. The evidence on record undoubtedly
indicate that the amount of consideration paid by the complainant
towards Flat No. 402-A came to be adjusted towards payment of
consideration for purchase of Flat Nos. 701 and 101. The
averments in the complaint and the evidence for the complainant as
well is silent to state that the vendors of Flat No. 402-A agreed to
pay the complainant interest on the consideration of Rs.
29,40,000/- and the said entire amount came to be adjusted
towards payment of consideration for purchase of Flat Nos. 701
and 101. Reading of agreement Ex.128 would indicate that the
vendors i.e. accused firms acknowledged to have received entire

consideration amount long before possession of both the flats was
to be delivered. No purchaser would like to pay entire
consideration amount without obtaining possession or securing his
interest in what-soever manner. It is nobodies case in evidence that
the complainant was paid interest on the amount of Rs.
29,40,000/-. P.W. 1 Chandrakant has in no uncertain terms admitted
that under none of the agreements the complainant was agreed to
be paid interest. True, the terms of agreements for sale are other
way round. Vendor firms agreed to pay 9% interest. The
agreements, however, contained eventualities under which the
vendors were supposed to pay interest @ 9% p.a. Here, the
complainant has come with a case of 18% interest. The case of
18% interest is based on oral contract. The case is, however, not
supported by any evidence.
26. It is the case of the accused persons that, the

complainant paid Rs. 17,00,000/- as earnest money for purchase of
flat No. 701. For flat No. 101, he paid Rs. 12,40,000/- . In proof of
the same the defence tendered in evidence its account extract. The
accused have examined their Chartered Account D.W. 1 Hemant
Doshi. He also gave some certificates ( Ex. 63 to 66). While the
entries in the Ledger Account of ACME Sthapit Ltd., Well Build
Realtors Pvt. Ltd., Asmit Enterprises and Ascent Associates find
place at Ex. 67 to 73. It is true that the complainant is not a party to
any of these documents. There is no evidence to indicate the
complainant to have ever admitted the entries in the ledger account
relating to his transactions. Learned Advocate for the complainant,
however, referred to those ledger account entries to ultimately

contend that the cheques in question were issued towards
repayment of consideration amount received under the agreement
of sale of flat Nos. 701 and 101. In view of Section 34 of the
Evidence Act, although the entires in the books of account
regularly kept in the course of business are relevant, but shall not
alone sufficient evidence to charge any person with liability. Since
the entries in the Ledger account have been referred to by Learned
Advocate for the complainant, I propose to read them in evidence.
The complainant could not make out a case to lead me to infer that
the entries in the ledger account are fake, fabricated and
afterthought. The entries in the ledger Ex. 69 would indicate that
the complainant is shown to have paid Rs. 17,00,000/- and Rs.
12,40,000/- towards Flat Nos. 701 and 101 respectively.
27. There is also evidence to indicate that there is one

more transaction of sale of flat. It is of Flat No. 102. Sale price of
the said flat was fixed for Rs. 17,35,200/-. Stamp duty and
registration charges for the execution of conveyance in respect of
flat No. 102 were amounting to Rs. 1,07,430/-. The complainant
purchased said flat. Admittedly, he did not pay anything towards
stamp duty and registration charges. P.W. 1 Chandrakant admitted
in no uncertain terms that the complainant did not pay any money
to Asmit Enterprises towards consideration for purchase of Flat No.
102. The agreement for sale pertaining to flat No. 102 is at Ex.
41.The contents therein would undoubtedly indicate that the
vendor Asmit Enterprises acknowledged to have received entire
consideration amount before hand. The complainant had sold said
flat later on to someone else.
28. P.W. 1 Chandrakant has also admitted in his evidence

that the accused paid the complainant a sum of Rs. 24,40,000/-by
the Demand Draft. Admittedly, the complainant did not pay any
farthing towards purchase price of Flat No. 102. He sold said flat to
someone else and made profit therefrom. It is true no
builder/vendor would hand over possession or convey title of the
flat without receiving any consideration amount. The facts of the
case on hand would however, indicate that the nature of the
transactions between the complainant on one hand and both
sisters firms its parent company on the other were altogether
different. It means these were not in fact of agreements for sale.
The agreements for sale of the flats were executed without
intention of performing them. Had really the complainant been
interested in purchase of the flats, the suit for specific performance
of the agreement for sale would have been filed by him
immediately on so called breach of both the agreements for sale of
Flat Nos. 701 and 101. On the contrary, the complainant has filed
two Special Civil Suit Nos. 223/2005 and 307/2005 against both
the firms and their partners for the recovery of money. In the
statement of claims in both the suits, the complainant/plaintiff has
asked for some amount towards the profit earned by the accused
firms on sell of both the flats. He has also asked for interest on the
amount of consideration paid under both the agreements.
29. The evidence on record undoubtedly indicate that the

transaction relating to the agreement for sale of flat No. 402-A was
first of its time entered into between the complainant and sister
concerns of the accused firms. That time the complainant was in
India. Admittedly, he paid a sum of Rs. 29,40,000/- towards
consideration amount for purchase of 65% of area of Flat No. 402-
A. He readily agreed to cancel said transaction after little over four
years. The amount of consideration paid by him under the
agreement dated 31-07-1996 appears to have been adjusted
towards payment of consideration for purchase of Flat No. 701 and
101. True, profit component or interest on the amount of Rs.
29,40,000/- might have been taken into consideration while
adjusting said amount towards consideration for Flat Nos. 701 and
101. Both complainant and accused persons are silent on this
aspect. First time in the arguments, a calculation was tendered
across the Bar indicating component of interest. There is no
evidence to indicate that the accused persons had really agreed to
pay the complainant 18% interest on the amount of consideration,
in the event of failure of transaction relating to Flat Nos. 701 and
101. It is reiterated that during period, in 2002 Flat No. 102 came
to be sold to the complainant. No amount of consideration has been
paid by the complainant for purchase of the said flat. The
complainant did not lead any evidence to indicate that he sent any
funds directly to the accused firms or to his P.O.A towards
payment of consideration. Thus, the evidence on record indicate
that the complainant only paid Rs. 29,40,000/- in July, 1996. The
accused firms have paid him Rs. 24,40,000/- It is not known
towards what kind of discharge of liability said amount was paid.
Moreover, Flat No. 102 worth of Rs. 17,35,200/- was sold to the
complainant without receiving any farthing. Learned Advocate for
the complainant adverted my attention to the entries in the Ledger

account indicating that the complainant had been issued 18
cheques, of Rs. 50,000/- each. In the entries it has been stated that
those cheques were issued towards repayment of advance received
as consideration for the Flat No. 701. Had really those cheques
been issued towards repayment or part of consideration amount
received by the accused firms, the complainant would have in no
time presented those cheques for encashment. He did not do so. He
kept those cheques with him for six months i.e. until validity period
of the cheques was over. Then, he returned those cheques to the
accused firms, who in turn issued three cheques in question and
one cheque of Rs. 5,00,000/-. Had these cheques really been
towards repayment of the amount, here again, the complainant
would not have lost time in presenting those cheques for
encashment. Admittedly, three cheques came to be presented for
encashment 3 to 4 days before validity period thereof was to over.
Admittedly, on presenting of those cheques, they came to be
returned with an endorsement “payment stopped by the drawer”.
Admittedly, when the cheques were presented for
encashment/clearance, there were sufficient funds in the accounts
of the accused firms, to clear the cheques. There is, therefore,
reason to say that the parties inter se had some dispute over the
transactions and payment of amount under the cheques. Therefore,
the accused firms gave stop payment instruction to its Banker.
D.W. 2 Prakash was the employee of the Indian Overseas Bank. He
tendered in evidence the certificates Exs. 78 to 72 to indicate that
there were sufficient balance in the account of both the accused
firms. This fact was not seriously disputed before the trial Court.
True, two of the certificates are undated. It was, therefore,

suggested by Learned Advocate for the respondent/complainant
that the witness prepared those documents on the Court premises
and tendered in evidence immediately. The witness is the Bank
official. He has no reason to take side. Had really there been falsity
in his evidence, the complainant firm could have very well
summoned the original document from the Indian Overseas Bank,
the banker of the accused firm. It is true that, in response to the
statutory demand notice (Ex.141 ), the accused firms did not come
with a case that the cheques in question were issued as the security
towards completion of the transaction pertaining to Flat No. 102. It
is also true that had the complainant owed Rs. 13,42,660/- to the
accused firms, they could have filed the suits for the recovery of
the said amount. Inaction on the part of the accused firms may
speak in volume. The fact, however, remains that the transactions
between the complainant and the accused firms were not really
realty transactions. Had the complainant really intended to bye the
flats, he would have filed the suit for specific performance of the
contract for sale of flat Nos. 701 and 101. He would not have
agreed to bye undivided 65% portion of office block. The
transactions between the parties smack of either investment or
money lending. The complainant did not tender in evidence any
document to indicate that the payment of profit thereof is reflected
in his returns submitted to the Income Tax Department in India or
America. P.W. 1 Chandrakant was not in the know of whether
there were any other transactions or payment of money in relation
to the transactions in question between Bhavin (complainant ) and
both the firms. Bhavin has not been examined. Although P.W. 1
Chandrakant is in the know of real nature of the transactions, he

suppressed the same from the Court. Had really the cheques been
issued towards payment, the complainant would not have allowed
to pass period of validity of 18 cheques issued earlier. The reissued
cheques in question were presented only a few days before its
period of validity was to over. There is, therefore, reason to observe
that the genesis of the transactions and true nature thereof has
been suppressed from the Court. Admittedly, the complainant has
instituted two suits for the recovery of the amount on account of
failure of the transactions for purchase of Flat Nos. 701 and 101.
The suits are for recovery of money and not for specific
performance of the contracts for sale. The claims made in both the
suits are towards principal amount, interest thereon and even profit
earned on sale of those flats. It is a case of civil liability. The case
averred in the complaint is that the accused firms issued the
cheques towards part repayment of the principle amount with 18%
interest thereon. The case is based on oral agreement. No evidence
has been laid in support thereof. The agreement on record would
indicate that the accused firm agreed to pay 9% interest in certain
eventualities i.e. in case of delay to hand over the possession or
execution of the conveyance. The nature of the transaction indicate
that those were never intended to be acted upon. Then whether
really the accused firms are liable to pay interest to the complainant
would be a question to be decided by the Civil Court alone. This is
a criminal matter. The accused are sought to be punished for dis-
honour of the cheques. The provisions of law should, therefore,
strictly be interpreted. It is true that, D.W. 3 Ketan had in one
breathe admitted that the cheques were issued towards repayment
of the amount. In the second breathe, however, he testified that the

cheques were issued as a security towards completion of the
transaction relating to Flat No. 102. P.W. 1 Chandrakant
unequivocally admitted that the whole transaction pertaining to
Flat No. 102 was to be materialised. The cheques were in his
custody. The validity period of the cheques was in vogue. He
presented the cheques for encashment after possession of Flat No.
102 was obtained. P. W. 1 Chandrakant came with afterthought
version that the accused had instructed him not to present the
cheques. The complainant could have come with this version in the
complaint itself and in his Examination-in-Chief, had it really been
so.
30. It is reiterated that the transactions between the
complainant on one hand and the accused persons on the other
indicate that those were of either investment or money lending.
Enforcement of rights of the complainant under the agreements for
purchase of Flat Nos. 701 and 101 is necessarily a subject matter of
civil suit. The complainant has instituted the civil suits. If he makes
out a case that the accused firms owed the amount under both the
agreements with interest thereon, the suits may be decreed. Here,
all these aspects cannot be gone into firstly for want of averments
in the complaint and necessary evidence in that regard. When the
defence spilled the beans, the complainant tried to rely on the
defence evidence to make out his case. It is true that the accused
persons are not saint. They acknowledged to have received the
amounts towards earnest money. On sale of the flats they have
earned profits. However, the calculation as regards what is due to
the complainant can best be done in the civil proceedings.
31. The trial court overplayed the presumption U/s. 139 of

the N.I. Act. In view of the trial court, since both the agreements
for sale of Flat Nos. 701 and 101 contained recitals acknowledging
payment of entire consideration amount supported by independent
receipts, the accused persons are precluded from leading oral
evidence inconsistent with the terms of the written agreement.
Learned trial judge has placed reliance on Section 92 of the
Evidence Act in this regard. For better appreciation, Section 92
with its provisos is reproduced below.
92. Exclusion of evidence of oral
agreement.-When the terms of any such contract,
grant or other disposition of property, or any
matter required by law to be reduced to the form
of a document, have been proved according to the
last section, no evidence of any oral agreement or
statement shall be admitted, as between the
parties to any such instrument or their
representatives-in-interest, for the purpose of
contradicting, varying, adding to, or subtracting
from, its terms:
Proviso (1).- Any fact may be proved which
would invalidate any document, or which would
entitle any person to any decree or order relating
thereto; such as fraud, intimidation, illegality,
want of due execution, want of capacity in any
contracting party, (want of failure) of
consideration, or mistake in fact or law.
Proviso (2).- The existence of any separate
oral agreement as to any matter on which a
document is silent, and which is not inconsistent
with its terms, may be proved. In considering
whether or not this proviso applies, the Court
shall have regard to the degree of formality of the
document.
Proviso (3).- The existence of any separate oral
agreement, constituting a condition precedent to

the attaching of any obligation under any such
contract, grant of disposition of property, may be
proved.
Proviso (4).- The existence of any distinct
subsequent oral agreement to rescind or modify
any such contract, grant of disposition of
property, may be provided, except in cases in
which such contract, grant or disposition of
property is by law required to be in writing, or has
been registered according to the law in force for
the time being as to the registration of documents.
Proviso (5).- Any usage or custom by which
incidents not expressly mentioned in any contract
are usually annexed to contracts of that
description, may be proved:
Provided that the annexing of such incident would
not be repugnant to, or inconsistent with, the
express terms of the contract.
Proviso (6).-Any fact may be proved which shows
in what manner the language of a document is
related to existing facts.”
32. Proviso (1) to Section 92 enables party to lead

evidence as regards want of consideration or failure of
consideration. Want or failure of consideration may be part or in
full. Statement in a document that the consideration money was
paid is not of itself conclusive evidence of such payment and may
be rebutted by the evidence of non-payment. The acknowledgment
of receipt of the whole or part of the sale consideration in a deed of
sale is not a term of deed or sale and oral evidence may be given
to show that the amount acknowledged, or any part of it, was not
received ( page Nos. 2060 and 2061 of Sir John Woodroffe &
Syed Amir Ali's Law of Evidence, 16th Edition.)
33. In the case of Krishna Janardhan Bhat V/s. Dattatraya

G. Hegde, 2008 ALL MR (Cri) 1164 ( S.C.), it has been held as
under :
“( C ) Negotiable Instruments Act, (1881),
Ss. 138, 139 – Dishonour of cheque – Defence –
For proving defence accused is not required to
step into witness box. He can rely upon material
already on record. Standard of proof to prove
defence is “preponderance of probabilities”
An accused for discharging the burden of
proof placed upon him under a statute need not
examine himself. He may discharge his burden on
the basis of the materials already brought on
records. An accused has a constitutional right to
maintain silence. Standard of proof on the part of
an accused and that of the prosecution in a
criminal case is different”
34. In the case of Meera V/s. Ashalata, 2016 (3)

Maharashtra Law Journal, 108, His Lordship of the Bombay High
Court has observed in para No. 22 as under :
22. What must be clearly understood is that for

acquitting an accused of an offence punishable
under Section 138 of the Negotiable Instruments
Act, it is not necessary that the Court must come to
a positive conclusion that there was absolutely no
transaction between the accused and complainant,
or that, no amount whatsoever was due and
payable by the accused to the complainant. As a
matter of fact, when post dated or blank cheques
are issued and issuance of cheque is not in dispute,
it would be difficult to accept that there would be
absolutely no transaction between the parties, but
that does not solve the problem. There may be
transactions which are of a totally different nature
than projected by the complainant in the complaint,
or in the evidence. The real nature of the

transaction is quite often suppressed, because the
disclosure thereof might invite a scrutiny of the
legality of the transaction and create further legal
complications, or enable the accused to raise a
probable defence. Therefore, in respect of offences
under section 138 of the Act, the Court cannot hold
an accused guilty only because it comes to the
conclusion that there must have been some
understanding or transaction between the parties,
and the accused is falsely claiming that there was
no transaction whatsoever. The Court must be
satisfied that the entire amount mentioned in the
cheque was due and payable.”
35. In the cases on hand, true nature of the transactions

have been suppressed. The cheques ( old 18 + 4 new) were in the
custody of the complainant for over 11 months, before the last four
cheques came to be presented for encashment. Had the amounts
under cheques really been payable to the complainant, he would
not have lost time to present them for encashment. The cheques
have been dis-honoured for the reason “payment stopped by the
drawer”. In the notice reply the accused firms raised dispute in
relation to the transactions with the complainant. There is some
evidence to indicate that the accused firms had issued a letter to the
complainant asking him to return the cheques. Letter was sent
through the courier. There is receipt of delivery of said letter. The
complainant had disputed the same. According to him, those are
after thought created documents. All these facts can very well be
gone into in a civil proceeding. The suits have already been
instituted by the complainant for the recovery of money. Genuine
doubt as to whether the cheques were really issued with an
intention to pay the amount thereunder has successfully been

created by the defence. The accused are, therefore, entitled to
benefit of doubt. In the result, this Court is not at one with the
findings recorded by the trial Court in all the cases. Interference
with the Judgment of conviction, and resultant orders of sentence
passed in all the four cases is called for. In the result, the appeal
succeeds.
-Order -
1. Criminal appeal Nos. 159/2012, 160/2012, 161/2012
and 162/2012 are allowed.
2. The orders dated 27-09-2012 passed by the Judicial

Magistrate First Class, Kolhapur, in Sum.Cri. Case Nos.
1381/2003, 1380/2003, 1713/2003 and 1348/2003 convicting the
appellants/accused for the offence punishable U/s. 138 of the
Negotiable Instruments Act, and sentencing them to suffer rigorous
imprisonment for six months, and directing them to pay the
complainant firms compensation is set aside.
3. The appellants/accused are acquitted of the offence/s

punishable under Section 138 of the Negotiable Instruments Act.
4. The bail bonds of the appellants/accused stand

cancelled.
5. Original Judgment be kept in Criminal Appeal No.

159/2012 and copies of the same be kept in Criminal Appeal Nos.
160, 161 and 162/2012.
Sd/-
Date: 5-12-2016 ( R.G. Avachat)
Sessions Judge, Kolhapur
I affirm that the contents of this PDF file Judgment are

same, word to word, as per the original Judgment.
Name of Stenographer S.N. Kulkarni, (P.A. )

Name of Court Principal District & Sessions
Judge, Kolhapur.
Date of Dictation 05-12-2016
Judgment signed by the P.O.on 10-01-2017
Judgment uploaded on 11-01-2017

Ashok Mundargi Shirish Gupte

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1 (C.J. ) in Cri. Appeal Nos.

159,160, 161 and 162 of 2012

IN THE COURT OF THE SESSIONS JUDGE,

Criminal Appeal No. 159/2012 Ex. No 28/A

Criminal Appeal No. 160/2012 Ex. No 22/A

Criminal Appeal No. 162/2012 Ex. No 22/A

1. M/s. Asmeet Enterprises,

2. Pravin Amidas Mehta, Age: 62,

3. Munish Pravin Doshi, Age: 42

4. Pravin Himmatlal Doshi, Age: 69,

1. Shri. Bhavin Chandrakant Mehta

Criminal Appeal No. 161/2012 Ex. No. 24/A

1. M/s. Ascent Associates,

2. Pravin Amidas Mehta, Age: 62,

3. Munish Pravin Doshi, Age: 42

4. Ketan Jayantilal Mehta, Age: 48,

1. Shri. Bhavin Chandrakant Mehta

Shri. Shirish Gupte, Shri. A.P. Mundargi, Senior Advocates

These four appeals are filed by the appellants/accused

1. Present appeals arise out of the complaints filed by the

2. It is alleged by the respondent/complainant in the

3. Towards repayment of the consideration amount

Bankers Ichalkaranji Janta Co-operative Bank, Kolhapur. The

4. Inspite of service of notice on the appellants, they

5. The Learned J.M.F.C. Kolhapur, took cognizance of

6. To bring home the guilt of the appellants/accused, the

7. The trial Court, after appreciating the evidence on

trial Court passed separate Judgments in all the four cases

8. The Judgments of conviction dated 27-09-2012 passed

9. Heard Shri. Shirish Gupte, Shri. A.P. Mundargi

10. The submissions made for and on behalf of the

stop payment instructions.

11. Shri. P.G. Wagh, Learned Advocate for the

Instead of detaining myself to the oral submissions

12. Following points arise for determination. The findings

141 cannot be said to be satisfied.

14. For the sake of convenience, the evidence in Sum.

15. Verification statement of the P.O.A of the complainant

16. There is evidence to indicate that the statutory demand

Provided that nothing contained in this sub-section

Explanation-For the purposes of this section,-

17. Law does not prescribe defined phraseology to be

Pravin Mehta is stated to have resigned as partner of the firms,

The accused Nos. 2 to 4 therefore, cannot be heard to

Point Nos. 2 and 3.

affidavit of evidence. In his Examination-in Chief, he has testified

19. Affidavit of Examination in Chief of P.O.A.

20. P.O.A Chandrakant has verified his affidavit of

complaint in all those transactions. All the agreements entered into

(b) the payee or the holder in due course of the

Sec.139 – Presumption in favour of holder :-

It shall be presumed, unless the contrary is proved,

S.138 does not run counter to the basic

Dishonour of a cheque is by itself not an offence u/s

(1) the cheque has to be towards payment of an

As S.138 incorporates strict liability. Being a penal provision, it has

22. Admittedly, the cheques have been issued/drawn by

complaint is repayment of earnest amount with interest thereon as

23. It is reiterated that, the complainant came with a case

24. P.O.A. Chandrakant came to be extensively cross-

complainant had suppressed very many facts. In view of this Court,

25. The complainant had entered into an agreement for

65% area of flat No. 402-A in ACME Plaza. Admittedly, the