apeal342of06.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 342 OF 2006
Vishal Machinery through its
Proprietor Smt. Santosh Ashok Badola,
Aged about 33 years, Occ.Business,
R/o. Sewa Sadan Chowk, Near
Syndicate Bank, Gandhibagh,
Nagpur, through its Power of Attorney
Holder Ashok S/o. Rameshchandra Badola,
Aged about 40 years, Occ. Business,
R/o. Sewa Sadan Chowk,
Near Syndicate Bank, Gandhibagh,
Nagpur ...APPELLANT
...V E R S U S...
M/s. Dudhankar & Sons,
through its Proprietor Ramesh Dudhankar,
Aged - Major, Occ. Government Contractor,
R/o. 55/B, Shiv Nagar, Nandanwan,
Nagpur. ...RESPONDENT
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Mrs. Mohini Sharma holding for Mr. S.V. Purohit, counsel
for the Appellant.
None for Respondent.
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CORAM:
ROHIT B. DEO, J.
DATE:
NOVEMBER 08, 2017 ORAL JUDGMENT:
Challenge is to the judgment and order dated ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:47:49 ::: apeal342of06.odt 2 6.2.2005, in Summary Criminal Case No. 6054 of 2005 delivered by Judicial Magistrate First Class, Nagpur, by and under which the respondent is acquitted of offence punishable under section 138 of the Negotiable Instruments Act, 1881(hereinafter referred as "the Act" for short).
2 Heard Smt. Mohini Sharma, the learned counsel for the appellant. None appeared on behalf of the respondent. 3 One M/s. Vishal Machinery, a proprietary concern of Smt. Santosh Ashok Badola instituted complaint under section 138 read with section 142 of the Act against M/s. Dudhankar & Sons. 4 The complainant instituted the complaint through Ashok Badola, the power of attorney holder for Smt. Santosh Badola, the proprietor of M/s. Vishal Machinery. 5 The gist of the complaint is that the respondent (hereinafter referred to as "the accused") purchased PVC pipes from the appellant (hereinafter referred to as "the complainant") worth Rs. 1,76,000/- (Rupees One Lakh Seventy Six Thousand). The contention in the complaint is that towards payment for said ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:47:49 ::: apeal342of06.odt 3 purchase, the accused issued in favour of the complainant cheque 013472 dated 5.4.2004 for Rs. 1,76,000/-. The said cheque was presented for payments, was dis-honoured for want of sufficient funds in the account of the accused, the statutory notice was issued by the complainant which was not complied with by the accused, hence, institution of the proceedings under section 138 of the Act.
6 CW 1 is - Ashok Badola, the power of attorney holder on behalf of the proprietor of M/s. Vishal Machinery. The deposition is broadly consistent with the contents of the complaint. However, it is brought on record in the cross examination of CW 1 that the bills Exhs. 24 and 25 have been signed only by the complainant and do not bear any counter signature or other endorsement of the accused. It is elicited in the cross examination of the said witness, that other than Exhs. 24 and 25, there is no documentary evidence to prove that the pipes worth Rs. 1,76,000/- were sold and delivered to the accused. 7 CW 2 Isram Patle is the godown in-charge of Madan Agencies situated at Wadi. CW 2 has deposed that PVC pipes manufactured by Chetak Industries are stocked in the said ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:47:49 ::: apeal342of06.odt 4 godown. The accused used to come to the godown with bills issued by M/s. Vishal Machinery and accordingly the said witness used to deliver the goods to the accused, is the deposition. The evidence of the said witness does not take the case of the complainant any further. The said witness is not deposing as regards any specific transaction much less the delivery of PVC pipes worth Rs. 1,76,000/-. Moreover, it is difficult to believe that pipes worth Rs. 1,76,000/- or for that matter worth any amount will be delivered by godown in-charge to trader or businessman without executing a receipt evidencing the delivery. Concededly, CW 2 is not an employee of the complainant. He is an employee of Madan Agency and goods of various shop keepers are stocked in the warehouse of Madan Agency. Be that as it may, the evidence of Isram Patle is of little significance since he does not depose anything about the transaction in question and the deposition is, general in nature.
8 CW 3 - Vasant Shrikhande is the officer of the bank in which the accused maintained account. CW 3 is examined to bring on record the specimen signature of the accused. ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:47:49 ::: apeal342of06.odt 5 9 The defence of the accused, as is discernible from statement recorded under section 313 of the Code of Criminal Procedure, is of total denial. However, what is seen from the trend and tenor of the cross-examination, is that the accused is denying the signature on the cheque and it is elicited in the cross- examination of the complainant that there is difference in the colour of the ink used in the signature and the rest of the contents of disputed cheque Exh. 27. The complainant has further admitted that there is difference in the signature on the disputed cheque Exh. 27 and signature on Exh. 31 which is the postal acknowledgment as regards the statutory notice addressed to the accused.
10 The learned Magistrate has recorded a finding of fact that the complaint is instituted by the husband of the proprietor and it is not satisfactorily proved that the husband of the proprietor was in a position to depose from personal knowledge as to the transaction. The learned Magistrate has further recorded a finding of fact that it is not proved that the cheque was issued against discharge of existing liability. The learned Magistrate has holistically appreciated the evidence on record including Exhs. 24 and 25 which are the bills issued by the complainant and which ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:47:49 ::: apeal342of06.odt 6 bills are not counter signed or otherwise endorsed by the accused. It is noted that there is no documentary evidence on record to suggest that the PVC pipes worth Rs. 1,76,000/- were actually delivered to the accused.
The view taken by the learned Magistrate is not perverse. The view is possible or plausible view. I do not find any compelling reason to interfere with the judgment of acquittal.
The appeal is sans merit and is dismissed.
JUDGE RS Belkhede ::: Uploaded on - 09/11/2017 ::: Downloaded on - 10/11/2017 01:47:49 :::