Criminal Appeal Nos. 15, 16, 17 and 18 of 2013. Case: Ms. Agency Real Margao Pvt. Limited, Panaji, Goa Vs Subhash K. Parab. High Court of Bombay (India)
| Case Number | Criminal Appeal Nos. 15, 16, 17 and 18 of 2013 |
| Counsel | For Appellant: N. Sardessai, Senior Adv. with D. Shirodkar, Advs. and For Respondents: S. M. Singbal, Adv. |
| Judges | U. V. Bakre, J. |
| Issue | Negotiable Instruments Act (26 of 1881) - Sections 138, 139, 145(2) |
| Citation | 2015 CriLJ 2336 |
| Judgement Date | February 12, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
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All the above appeals are disposed of by this common judgment since they are filed against the same common judgment and order dated 29.08.2011 passed by the learned Judicial Magistrate, First Class "C" Court at Panaji ("J.M.F.C.", for short) in Criminal Case Nos. OA/142/2006/C, OA/143/2006/C, OA/144/2006/C and OA/145/2006/C, res-pectively and involve common facts and law.
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The appellant was the complainant in the said criminal cases whereas respondent No. 1 was the accused therein. Parties shall be hereinafter referred to as per their status in the said cases.
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The complainant had filed the complaint against the accused for offence under Section 138 of the Negotiable Instruments Act, 1881 ("N.I. Act" for short) which gave rise to the said criminal cases. Case of the complainant, in short, was as follows:-
The complainant is a company carrying on business of selling liquor in Goa and in rest of India. The accused was the employee of the complainant and had collected the payment of sale of liquor made by the customers on behalf of the complainant-company as representative of the complainant. However, the accused did not pay the money collected from the customers to the complainant. The accused owed to the complainant-company money which he had collected from the customers. The accused issued a letter/undertaking dated 06.07.2005 in relation to the liability owed by the accused towards the complainant. The accused also issued cheques bearing No. 042360, 042361, 042362, 042364 respectively for a sum of Rs. 82,601/-, Rs. 82,601/-, Rs. 82,601/- and Rs. 1,18,461/-, each dated 30.7.2005, 30.08.2005, 30.09.2005, and 30.10.2005 respectively in favour of the complainant towards the liability. The said cheques when presented for clearance were dishonoured for reasons "Funds insufficient". The complainant issued legal notices to the accused. Inspite of receiving the notices, the accused did not make the payment and hence the complaints.
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The cheque No. 042361 dated 30/09/2005 for an amount of Rs. 82,601/- and legal notice dated 23/12/2005 pertains to Criminal case No. OA/142/06 and Criminal Appeal No. 17/2013. The cheque bearing No. 042364 dated 30/11/2005 for an amount of Rs. 1,18,461/- and legal notice dated 23/12/2005 pertains to Criminal Case No. OA/143/06 and Criminal Appeal No. 15/2013. The cheque No. 042362 dated 30/10/2005 for an amount of Rs. 82,601/- and legal notice dated 23/12/2005 pertains to Criminal Case No. OA/144/06 and Criminal Appeal No. 18/2013. Lastly, the cheque No. 042360 dated 30/08/2005 for Rs. 82,601/- and legal notice 23/12/2005 pertained to Criminal Case No. 145/OA/06 and Criminal Appeal No. 16/2013.
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The substance of accusation was explained to the accused to which the accused pleaded not guilty and claimed to be tried. The complainant examined its authorised officer namely Shri Nishakant Pednekar as PW1. PW1 produced all the relevant documents. Statement of the accused came to be recorded under Section 313 of Cr.P.C. The accused merely denied the case of the prosecution. The accused examined himself as DW1 and produced documents.
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Case of the accused in short was as follows:-
In the year 1975 he was appointed as a salesman for depot situated at Hubli, near Bankapur Chowk and he was working at the said depot of the complainant till it was closed i.e. till the year 1976. Thereafter, he was transferred to Margao depot as a salesman. He worked as such for a period from 1995 till 2005. On 6.7.2005 at around 10.00 a.m., the accused was called along with the cheque books and other documents relating to Malax Traders in the office of the complainant to meet Managing Director Mr. Dilip Shirodkar, as well as the Director Mr. Vinod Shirodkar and as per the instructions he went to the cabin of Managing Director and the director where the employee Mr. Nishakant Pednekar was also present during this meeting. The accused was threatened by the said directors of the Company that if he does not act as per their say he will be finished. He was confined to office from morning till 6.00 p.m. in the evening without food and water and all the said persons were threatening him and pressurizing him to sign the cheques without any liability or debt due to him. The accused was under immense pressure and fear as his nature was meek and further he had very good relationship and high respect towards the late father of the Managing Director of the complainant company namely Mr. Gajanan Shirodkar. The accused succumbed to their demands and signed the cheques under force and duress. On the same day at about 4.30 p.m. he was given a letter dated 6.7.2005 which was drafted by their advocate and he was asked to sign the same. The accused signed the said letter under force and duress as he was threatened by them at around 6.00 p.m. and handed over the same along with the cheques which are the subject-matter of the present cases. He was scared for his life and being a common man he did not want his name and reputation to spoil and, therefore, kept quiet without any reaction and did not lodge any police complaint. During the said period the accused was facing depression and tremendous mental agony and hoped that taking into consideration his long term services and good relation with the late father of the Managing Director, the complainant company would settle the accounts amicably and maintain the dues, if any. Further all the transactions at Margao depot are billed and no transactions were done without issuing either credit bills or cash bills, which were duly accounted for. It was a usual practice that whenever any cash is paid, counter bills (cash memos) were made and goods were delivered. The accused had not received any cash against any goods without issuing cash memo and without recording the transaction. The credit bills were issued only to known customers and once cash was paid, receipts were issued in settlement of respective credit bills. No cash was received by the accused which was unaccounted against the bills and which were not reflected in the books of accounts. Subject cheques without any enforceable debt were procured under threat and duress and there was no enforceable debt. The directors of the complainant are highly influential persons and well connected to ministers and police and, therefore, he was scared for his life to file any police case against the Managing Director and Director of the company. He had filed Labour Case praying to allow him to resume the duties with back wages i.e. for illegal termination, retrenchment and compen-sation in the alternative of around Rs. 3,25,000/- which were legal dues. Letter dated 06.07.2005 was also taken under force, coercion and duress.
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Upon consideration of the entire evidence on record, the learned J.M.F.C. held that she had territorial jurisdiction to entertain the complaint. The learned J.M.F.C. further held that the debt was not time barred. There was also no dispute regarding execution...
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