Navneetdas Narayandas Barshikar vs Bacchubhai Mulji Tanna
2011 Latest Caselaw 158 Bom

                                     (1)            Cri. Appeal No. 425 of 2000


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
              AURANGABAD BENCH, AT AURANGABAD.




                                                                                  
                    CRIMINAL APPEAL NO. 425 OF 2000




                                                          
    Navneetdas Narayandas Barshikar,
    Age : 72 years,                                          .. Appellant




                                                         
    Occupation : Nil,                                          (Original
    R/o. Station Road, Ahmednagar.                              complainant)




                                       
                 versus
                       
    1. Bacchubhai Mulji Tanna,
                      
       Proprietor of B.M.T. Industries,
       Age : Major,
       Occupation : Business,
       R/o. 17, 16, 17, Nilkanth Shopping
      

       Arched, Near Vijaya Bank,
       Chembur, Mumbai - 400 071.
   



    2. The State of Maharashtra,                             .. Respondents
       through Public Prosecutor,                               (No.1 - Original
       High Court Bench,                                                accused)





       Aurangabad.

                                .......................





               Mr. V.S. Bedre, Advocate, for the appellant.

               Mr. S.V. Natu, Advocate, for respondent no.1.

               Mr. S.N. Kendre, Additional Public Prosecutor,
               for respondent no.2.




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                                     (2)            Cri. Appeal No. 425 of 2000

                               ........................




                                                                                  
                                CORAM : SHRIHARI P. DAVARE, J.




                                                          
                                 Date of reserving the
                                 judgment : 17th November 2011.

                                 Date of pronouncing the




                                                         
                                 judgment : 1st December 2011.




                                       
    JUDGMENT :

1.

Heard learned respective Counsel for the parties.

2. This is an appeal preferred by the appellant (original complainant) challenging the judgment and order of acquittal

dated 16th August 2000, rendered by the learned Judicial Magistrate (F.C.), Court No.3, Ahmednagar, in Summary

Criminal Case No. 1093/1998, thereby acquitting the respondent (original accused) for the offence punishable under Section 138

of the Negotiable Instruments Act, 1881.

3. Parties are hereinafter referred to as per their original

status i.e. complainant and accused.

4. The factual matrix of the matter is as mentioned below:

(3) Cri. Appeal No. 425 of 2000

The appellant (original complainant), namely, Navneetdas

s/o. Narayandas Barshikar, is resident of Ahmednagar and carries

on business there, whereas the respondent (original accused), namely, Bacchubhai s/o. Mulji Tanna, is resident of Mumbai, and is proprietor of B.M.T. Industries. It is alleged that the accused

purchased goods worth Rs. 2,00,000/- from the complainant on credit, on 11-6-1996, and issued cheque bearing No. 235406 of

Rs. 50,000/- to the complainant on 31-1-1998 towards part

payment, and the accused assured that the said cheque would be honoured. Accordingly, the complainant presented the said

cheque on 4-2-1998 for encashment purpose in Nagar Urban Cooperative Bank, Ahmednagar. However, the said cheque was

dishonoured and was returned unpaid by the said Bank on

11-2-1998, with the endorsement 'insufficient funds'. Hence, the complainant immediately sent a letter to the accused on 11-2-1998 by courier. It is alleged that on receipt of the said

letter, accused requested the complainant to present the said cheque once again with the assurance that the said cheque would be honoured definitely. Relying upon the said assurance, the

complainant again presented the said cheque on 17-2-1998 for encashment purpose. However, the said cheque was again dishonoured and returned unpaid due to 'insufficient funds'. The information about dishonour of the said cheque was received by

(4) Cri. Appeal No. 425 of 2000

the complainant on 23-2-1998. After receipt of the said information from the Bank, the complainant issued notice to the

accused on 26-2-1998, through Advocate, demanding the cheque

amount. The Postal Department gave information of the said notice to the accused on 3-3-1998, but still the accused failed to make payment of the said cheque amount to the complainant, and

hence, it is alleged that the accused deceived the complainant deliberately and intentionally, and also committed offence

punishable under Section 138 of the Negotiable Instruments Act,

1881. Hence, the complainant filed complaint on 25-3-1998, against the accused under Section 138 of the Negotiable

Instruments Act. The verification of the complaint was recorded and process came to be issued against the accused on 16-7-1998.

The accused appeared therein and his plea was recorded on

28-6-1999, and the accused pleaded not guilty and claimed to be tried.

5. To substantiate the case of the complainant, the complainant examined as many as three witnesses, namely :

(1) PW 1 Navnitdas s/o. Narayandas Barshikar -

Complainant himself.

(2) PW 2 Madhusudan Rao Keli - Deputy Manager of Vysya Bank, Mumbai, and

(5) Cri. Appeal No. 425 of 2000

(3) PW 3 Subhash Kachardas Luniya -

Employee of Nagar Urban Cooperative

Bank, Ahmednagar.

Moreover, the complainant also produced documentary evidence, such as, disputed cheque in question, at Exhibit 20; letter issued

by the complainant to Shri Ashishbhai i.e. son of the accused, Exhibit 21; letter issued by the complainant to Shri Ashishbhai,

Exhibit 22; copy of the notice Exhibit 23; memos issued by the

Bank, Exhibits 38 and 39; and delivery challan Exhibit 24.

6. However, the accused neither examined himself nor examined any defence witness, but put forth his defence through

cross examination of the complainant and his witnesses, and also

through his statement recorded under Section 313 of the Code of Criminal Procedure, and also produced some documents on record. The accused stated therein that "The goods in question

were sent by complainant's son for repairs and reconditioning under the name and style as 'Priya Traders' and not for sale. The cheque was not delivered by me personally and I have no

dealings with complainant. I do not want to lead any evidence." In substance, defence of the accused is that the cheque in question, was not issued by the accused to the complainant towards repayment of any dues and there was no business

(6) Cri. Appeal No. 425 of 2000

transaction between them in that respect.

7. After considering the oral and documentary evidence

adduced / produced by the complainant and the accused, as well as, considering rival submissions advanced by the learned Counsel for the parties, learned trial court arrived at the

conclusion that the cheque in question, was not issued by the accused to the complainant towards discharge of legally

enforceable debt / liability, and therefore, acquitted the accused

for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, by the impugned judgment and order

dated 16th August 2000. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the appellant i.e. original

complainant has filed the present appeal assailing the same.

8. While adducing the oral evidence, the complainant i.e. PW 1 Navnitdas s/o. Narayandas Barshikar, stated that he is

dealing with the business of selling and purchase of machinery, whereas accused is proprietor of his business, and in 1996 also, the accused had purchased machinery from him worth Rs.

2,00,000/-, and the said machinery was delivered by him to the accused through road transport. Thereafter, the complainant demanded money from the accused repeatedly. Thereafter, accused sent him cheque of Rs. 50,000/- as a part payment along

(7) Cri. Appeal No. 425 of 2000

with letter at Ahmednagar, and the said cheque is produced at Exhibit 20, and the letter bearing signature of Ashish, son of

accused, is produced at Exhibit 21. The said cheque was

presented by him for encashment purpose, but the same was dishonoured and returned unpaid with endorsement 'insufficient funds'. Hence, he sent a letter to the accused through courier and

copy thereof is produced at Exhibit 22. Thereafter, the accused informed the complainant on phone, that he should present the

same cheque again and assured that it would be honoured.

Accordingly, the complainant presented the said cheque again, but the same was again dishonoured with the endorsement

'insufficient funds and account inoperative'. Hence, the complainant issued notice by RPAD to the accused, through

Advocate. Copy thereof is produced at Exhibit 23. However, the

accused failed to make payment of the said cheque within the stipulated period. Hence, the complainant filed complaint against the accused.

9. During the cross examination, the complainant PW 1 Navnitdas has admitted that he is not running any factory

anywhere. He had given advertisement for sale of machinery and the accused alone approached him for purchase of machinery, in question. However, he does not remember the date on which the accused came to Ahmednagar for purchase of machinery. He

(8) Cri. Appeal No. 425 of 2000

also stated that he knew the accused prior to the transaction in dispute. He also stated that he has no other transaction besides

the transaction in dispute with the accused. He further stated that

he was also dealing with sale and purchase of goods, machinery, papers, etc.. He also stated that he does not know whether there was any transaction between accused and his son. He further

stated that he is income tax payer and showed transaction of sale of Rs. 2,00,000/- of machinery in his return of income in the year

1996-97. He further stated that he has maintained sale and

purchase register and the subject matter of transaction in the present case is mentioned therein.

10. He was shown the delivery challan of 'Priya Traders',

dated 11-6-1996, and thereupon he stated that it bears signature

of his son which is marked as Exhibit 24. However, he stated that he does not know the contents of the said document. He denied that his son was running factory under the name and style

as 'Priya Traders'. He also denied that the contents of the said document Exhibit 24 are in the handwriting of his son. He further denied that the machinery of Priya Traders were pledged

with M.S.F.C. against the loan obtained by him. He also denied that neither his son nor he himself have any right to sell the machinery of Priya Traders. He also denied that the boilers which were referred by him earlier are mentioned in Exhibit 24.

(9) Cri. Appeal No. 425 of 2000

He further stated that he does not know whether the said boilers and other machines are still lying with the accused for repairs and

maintenance which were delivered by his son.

11. The accused put up his case, that the complainant had obtained cheque having signature of accused from his son

unknowingly, but the same was denied by the complainant. The complainant, however, admitted that the name of his son is

Ashish. He also admitted that he had sent letter to the son of the

accused after dishonour of cheque, however, he has not lodged any complaint against son of the accused. He has further

admitted that he has not sent any letter to the accused in respect of dishonour of cheque. Thereafter, specific question was put to

the complainant, whether accused had sent any letter in respect of

cheque subject matter of this case. Thereupon, he stated that the son of the accused had sent letter along with cheque which was sent on behalf of accused i.e. Exhibit 21.

12. P.W.2 Madhusudan Rao Keli, who is authorized Deputy Manager of Vysya Bank Ltd., Chembur, Mumbai,

produced the authority letter Exhibit 36, addressed by the Branch Manager to the Asst. Superintendent, C.J.M. Court, Ahmednagar, stating that he was authorized by Branch Manager to attend the court. He brought the relevant registers and stated that B.M.T.

(10) Cri. Appeal No. 425 of 2000

Industries was having account in his Bank in the year 1998, and cheque bearing No. 235406 was presented to his Bank on

6-2-1998 for collection, but it was not honoured because of

insufficient funds, and entry to that effect was made on 6-2-1998 in the concerned register i.e. cheque return register. He produced certified copy thereof at Exhibit 37; Memo dated 6-2-1998

prepared by the Bank is produced at Exhibit 38. He has stated that the cheque was again presented on 18-2-1998, and it was

again dishonoured because account was closed. The second

memo issued by the Bank is produced at Exhibit 39. He has stated that the account was not in operation since funds were

insufficient, and hence, cheque was dishonoured. He has further stated that the contents of Exhibit 39 i.e. second memo, that

'account closed', are not correct.

13. P.W.3 Subhash s/o. Kachardas Luniya has stated that he was serving in Nagar Urban Cooperative Bank and the

complainant was having bank account in his bank. The complainant deposited the cheque in question, drawn on Vysya Bank, Bombay, for collection, and copy of voucher is produced at

Exhibit 44. He has further stated that the said cheque was forwarded to Vysya Bank, Chembur, Bombay, but it was dishonoured. Accordingly, entry was made in the record and cheque return register and the said entry is marked as Exhibit 45.

(11) Cri. Appeal No. 425 of 2000

He has further stated that the said cheque was again presented on 12-2-1998 and challan is produced at Exhibit 46, but the said

cheque was again returned due to 'insufficient funds' and account

not in operation and entry was made on 21-2-1998 which is at Exhibit 47. He has further stated that he does not know if the Bank has filed suit against the complainant for recovery of Rs.

25,00,000/-. He has also stated that he has no personal knowledge about the record and entries.

14.

Learned Counsel for the appellant has canvassed that the presumption under Section 118(a) and 139 of Negotiable

Instruments Act has been raised in favour of the complainant, that the accused issued the cheque in question, to the complainant

towards discharge of liability / debt partly or in whole. In the

said context, the complainant examined himself, as well as, examined other two witnesses as mentioned herein above, as well as, adduced / produced oral and documentary evidence, and on

the basis of the said oral and documentary evidence, presumption under Section 118(a) and 139 of the Negotiable Instruments Act has been raised against the accused, as aforesaid. However, the

accused neither examined himself nor examined any defence witness, but simply cross examined the complainant and his witnesses. It is also canvassed by the learned Counsel for the appellant, that there is no specific defence of the accused put

(12) Cri. Appeal No. 425 of 2000

forth by him and the accused has miserably failed to rebut the presumption raised against him, even on preponderance of

probability. Moreover, it is submitted that the complainant

presented the said cheque twice but it was dishonoured for both the times. Hence, the complainant issued legal notice to the accused, through Advocate, on 26-2-1998 and copy thereof is

produced at Exhibit 23, and the said notice was received by the accused. However, still the accused failed to make payment of

the said cheque amount within stipulated period of 15 days from

the receipt thereof. Hence, the cause of action arose for the complainant to file the complaint since offence punishable under

Section 138 of the Negotiable Instruments Act was completed.

15. It is further submitted that the complainant has proved

and established beyond reasonable doubt that the disputed cheque in question, was issued by the accused to the complainant towards legally enforceable debt / liability. To substantiate the

said contentions, learned Counsel for the appellant has relied upon judicial pronouncements of (i) learned Single Judge of this Court, in the case of Bapurao s/o. Motiram Mankar Vs. Shri

Vyankatesh Housing Agency, Nagpur, and another, reported at 2010(6) Mh.L.J. 71, and (ii) learned Single Judge of this Court, in the case of Pioneer Drip Systems Pvt. Ltd., Hyderabad and another Vs. Jain Irrigation Systems Ltd., Jalgaon, reported at

(13) Cri. Appeal No. 425 of 2000

2010(2) Mh.L.J. 458, and urged that the present Appeal deserves to be allowed by quashing and setting aside the impugned

judgment and order of acquittal, dated 16th August 2000,

rendered by the learned Judicial Magistrate (F.C.), Court No.3, Ahmednagar.

16. Learned Counsel for respondent no.1 (original accused), countered the said arguments vehemently, and

submitted that although the initial presumption has been raised in

favour of the complainant under Section 118(a) and 139 of the Negotiable Instruments Act, on the strength of the oral and

documentary evidence adduced / produced by the complainant, the said presumption is rebuttable since the presumption under

Section 139 of the Negotiable Instruments Act is reversible

presumption and the test required therefor is on preponderance of probability. In the said context, learned Counsel for the accused canvassed that although the accused has neither examined

himself nor examined any defence witness in support of the said defence, the accused has put forth defence through cross examination of the complainant and his witnesses, and also

through his statement recorded under Section 313 of the Code of Criminal Procedure, and also by production of documents in that regard. Accordingly, learned Counsel for the accused submitted that the defence of the accused is that there was no business

(14) Cri. Appeal No. 425 of 2000

transaction between the complainant and accused in respect of the disputed cheque in question, and the goods, in question, were

sent by complainant's son for repair and reconditioning under the

name and style 'Priya Traders' and not for sale and the cheque was not delivered by the accused to the complainant personally since he has no dealing with the complainant. According to the

learned Counsel for the accused, the accused has proved and established the said defence on preponderance of probability and

made out a case that the said defence is a probable defence.

Hence, it is canvassed that the accused has rebutted the presumption under Section 139 of the Negotiable Instruments

Act, and therefore, it was incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed

legally enforceable debt / liability against the accused on the date

of issuance of the cheque and the cheque in question was issued by the accused to the complainant towards discharge of legally enforceable debt / liability, partly or in whole. However, learned

Counsel for the accused submitted that the complainant failed to discharge the said burden, and hence, learned trial court rightly acquitted the accused, and therefore, no interference therein is

called for in the present appeal. To substantiate the said contentions, learned Counsel for the accused has relied upon judicial pronouncement of the Hon. Apex Court, in the case of Krishna Janardhan Bhat Vs. Dattatraya G. Hegde, reported at

(15) Cri. Appeal No. 425 of 2000

(2008) 4 Supreme Court Cases 54, and urged that the present appeal be dismissed.

17. I have perused the oral and documentary evidence adduced / produced by the complainant, as well as, considered the submissions advanced by the learned Counsel for the parties,

anxiously, and also considered the judicial pronouncements cited by the learned Counsel for the parties, carefully, and at the outset,

covering letter of the cheque in question, i.e. letter dated

30-1-1998, Exhibit 21, clinches the issue in controversy, which discloses that the said letter has been written by Mr. Ashish

Tanna, Proprietor of B.M.T. Industrial Chemical Pvt. Ltd, to the complainant herein, namely, Navnitbhai Barshikar, and the

contents of the said letter are as follows :

B.M.T. Industries (Proprietor B.M.T. Industries

Chemical Pvt. Ltd.) 15-16-17, Neelkanth Shopping Arcade, 1st Flr., Nr. Vijaya Bank,

Chemburkar Marg, Chembur, Mumbai 400 071

Date : 30/01/1998

(16) Cri. Appeal No. 425 of 2000

To,

Navnitbhai Barshikar, "Motinarayan",

181, Bhutkarwadi, Ahmednagar - 414 001.

Dear Sir,

Sub :- Cheque No. 235406 for Rs. 50,000/-.

Enclosing herewith Cheque as per telephonic

discussion with our Shri Bachubhai Mulji Tanna bearing Cheque No. 235406 for Rs. 50,000/- (Rupees Fifty

Thousand Only) drawn on The Vysya Bank Ltd., Chembur Branch, towards Sale of 2 Boiler to M/s. Kanva Hydro-chem Ltd., Ankleshwar.

Kindly acknowledge receipt of the same and oblige.

Thanking you in anticipation,

Yours faithfully,

For B.M.T. Industries (Prop. B.M.T. Industrial Chemical Pvt. Ltd.)

(Sd/-) (Ashish B. Tanna) Director.

(17) Cri. Appeal No. 425 of 2000

Hence, it is implicitly clear from the contents of the said covering letter, dated 30-1-1998, of disputed cheque in question, that the

said letter was issued by the son of the accused, namely, Ashish

Tanna, to the complainant and not by accused to the complainant. Moreover, contents of the said letter state that the said cheque of Rs. 50,000/- refers to the transaction of sale of 2 Boilers to M/s.

Kanva Hydro-chem Ltd., Ankleshwar, and the cheque in question, was issued towards said transaction by the son of the

accused to the complainant, and obviously, the said cheque was

not issued by the accused to the complainant, since there is no dealing between them in that respect. Moreover, a specific

question was put to the complainant in the cross examination, "Whether accused had sent any letter in respect of cheque subject

matter of this case ?", and thereupon the complainant replied that,

"The son of accused had sent letter along with cheque which was sent on behalf of accused." Hence, suggestion was put to him that he was in need of money, and therefore, he obtained cheque

from the son of the accused, but the same was denied by him, as well as, suggestion was given to him that the accused had not entered into any transaction of purchase of machinery with him,

but the same was also denied by him.

18. Pertinently, it is material to note that after dishonour of the said cheque for the first time, the complainant issued

(18) Cri. Appeal No. 425 of 2000

notice to the son of the accused, namely, Ashishbhai, on 11-2-1998, and not to the accused, and the same is produced at

Exhibit 22.

19. Keeping in mind the said aspect, and coming to the another document i.e. delivery challan, Exhibit 24, of Priya

Traders, dated 11-6-1996, and when said document was confronted to the complainant in cross examination, he stated

that it bears signature of his son, but denied that his son was

running factory under the name and style as 'Priya Traders', and also denied that the handwriting on the said challan Exhibit 24

pertain to his son, and also denied that the machinery of Priya Traders were pledged with M.S.F.C. against the loan obtained by

him, as well as, denied that either his son or he himself have any

right to sell the machinery of Priya Traders. He has further denied that the boilers, which were referred by him earlier, are mentioned in challan Exhibit 24, and stated that he does not

know whether the said boilers and other machines are still lying with accused for the purpose of repairs and maintenance which were delivered by his son.

20. Considering the said testimony of the complainant, one thing is clear that the challan of Priya Traders, dated 11-6-1996, Exhibit 24, bears signature of son of the accused, as

(19) Cri. Appeal No. 425 of 2000

admitted by the complainant, and the said challan refers to boilers with accessories and other old machinery for

reconditioning and repair, to be returned, as well as, date of the

said challan i.e. 11-6-1996 is very material since very complaint of the complainant refers to the said date i.e. 11-6-1996, on which date, the accused allegedly took the material worth Rs.

2,00,000/- on credit. Moreover, it is also curious to note that even assuming the contention of the complainant, that the

transaction pertain to 11-6-1996, without admitting it, then the

question arises, how the cheque in question, was issued after substantial period of one and half year i.e. on 30-1-1998, towards

part payment of the said transaction. Having cumulative effect of the averment in the complaint, in respect of the transaction dated

11-6-1996, then challan dated 11-6-1996 i.e. Exhibit 24, disputed

cheque in question, of alleged transaction for Rs. 50,000/- and its covering letter dated 30-1-1998 i.e. Exhibit 21, issued by the son of the accused, namely, Ashish Tanna, making reference therein,

that the said cheque in question, of Rs. 50,000/- was drawn towards the sale of 2 Boilers to M/s. Kanva Hydro-chem Ltd., Ankleshwar, it is apparently clear that the disputed cheque in

question, was issued for different transaction and not towards any business dealing between the complainant and accused, and hence, it is further apparently clear that the accused has rebutted the presumption raised against him under Section 139 of the

(20) Cri. Appeal No. 425 of 2000

Negotiable Instruments Act, on preponderance of probability.

21. In this scenario, it was incumbent upon the

complainant to prove and establish beyond reasonable doubt, that there existed legally enforceable debt / liability against the accused, at the time of issuance of disputed cheque in question,

and the cheque in question, was issued by the accused to the complainant towards discharge of legally enforceable debt /

liability, partly or in whole. However, the complainant has

neither produced any cogent legal evidence in that respect, nor produced any accounts, and nor produced any bills / receipts

showing the dealing between the complainant and accused in respect of the business transaction pertaining to the disputed

cheque in question, and hence, it is crystal clear that the

complainant failed to prove and establish beyond reasonable doubt, that at the time of issuance of disputed cheque in question, there existed any legally enforceable debt / liability against the

accused and the disputed cheque in question, was issued by the accused to the complainant towards the discharge of said legally enforceable debt / liability, partly or in whole.

22. In the circumstances, after scrutinizing and analyzing the evidence on record, the view adopted by the learned trial court, while acquitting the accused, for the offence punishable

(21) Cri. Appeal No. 425 of 2000

under Section 138 of the Negotiable Instruments Act, 1881, is a possible view and same does not appear to be perverse.

Moreover, reasoning given by the learned trial court, for acquittal

of the accused, also cannot be faulted with, and hence, no interference therein is called for, and the impugned judgment and order deserves to be confirmed by dismissing the present appeal.

23. In the result, present Criminal Appeal, which is sans

merits, stands dismissed, and the judgment and order of acquittal

of the respondent no.1 herein i.e. original accused, dated 16th August 2000, stands confirmed.

( SHRIHARI P. DAVARE ) JUDGE

.........................

bgp/425kapp