Shri. Sudhir S/O Neeranjan Nayak, ... vs Shri. Krishna S/O Kanhiyalal ...
2017 Latest Caselaw 8317 Bom

                                     1                                        apeal191.14




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 CRIMINAL APPEAL NO.191 OF 2014


 Shri Sudhir s/o Neeranjan Nayak,
 Aged about 36 years, 
 Occupation - Business, 
 Proprietor of M/s. S.P. Fabritech, 
 Having its office/Residence at 302, 
 Chandan Nagar, Nagpur.                                       ....       APPELLANT


                     VERSUS


 1) Shri Krishna s/o Kanhaiyalal Mandhana,
     Aged about 30 years, 
     Occupation - Business, 
     Proprietor/Partner of M/s. Aarti
     Engineering Company, Having its 
     Registered Office at Near Gandhibag,
     Near Tahsil Police Station, 
     R/o Gandhibag, Nagpur.

 2) The State of Maharashtra,
     through Police Station Officer, 
     Police Station Tahsil, Nagpur.                           ....       RESPONDENTS

 ______________________________________________________________

            Shri Mahesh Mourya, Advocate for the appellant,
                       None for respondent No.1,
             Ms. Ritu Kaliya, Addl.P.P. for respondent No.2.
  ______________________________________________________________

                              CORAM : ROHIT B. DEO, J.

DATED : 1 NOVEMBER, 2017.

                                             st





                                       2                                        apeal191.14




 ORAL JUDGMENT : 

The appellant, who is the original complainant, is

challenging the judgment and order dated 11-5-2012 in Summary

Criminal Complaint 5978/2009, delivered by the learned 14 th Joint

Civil Judge (Junior Division) and Judicial Magistrate First Class,

Special Court under Section 138 of the Negotiable Instruments Act,

Nagpur, by and under which the respondent-accused is acquitted of

offence punishable under Section 138 of the Negotiable Instruments

Act, 1881 (hereinafter referred to as the "Act").

2. Heard Shri Mahesh Mourya, learned Counsel for the

appellant and Ms. Ritu Kaliya, learned Additional Public Prosecutor for

respondent 2/State.

3. The learned Magistrate has based the acquittal holding

that the complainant failed to establish that he was the payee or holder

in due course qua the disputed cheque. The learned Magistrate has

relied on the following observations of the Hon'ble Supreme Court in

Milind Shripad Chandurkar vs. Kalim M. Khan & Anr. reported in

2011(4) SCC 275 :

3 apeal191.14

"23. In the instant case, it is evident that the firm, namely, Vijaya Automobiles, has been the payee and that the appellant cannot claim to be the payee of the cheque, nor can he be the holder in due course, unless he establishes that the cheques had been issued to him or in his favour or that he is the sole proprietor of the concern and being so, he could also be payee himself and thus, entitled to make the complaint. The appellant miserably failed to prove any nexus or connection by adducing any evidence, whatsoever, worth the name with the said firm, namely, Vijaya Automobiles. Mere statement in the affidavit in this regard, is not sufficient to meet the requirement of law. The appellant failed to produce any documentary evidence to connect himself with the said firm. It is evident that the firm had a substantial amount of business as in one month it sold the diesel to respondent No.1-a single party, for a sum of Rs.7 lakhs. The appellant would, in addition, have also been carrying out business with other persons. Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc.

Thus, in such a fact-situation, there would be no dearth of material which could have been produced by the appellant to show that he was the sole proprietor of the said firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings."

4. Concededly, the disputed cheque is issued in favour of

M/s. S.P. Fabritech. The learned Magistrate, on a considered

appreciation of the evidence on record, has recorded a finding that the

complainant Sudhir Neeranjan Nayak has not produced on record any

4 apeal191.14

material to prove that he is the sole proprietor of M/s S.P. Fabritech.

The finding of the learned Magistrate is seriously disputed by the

learned Counsel for the appellant Shri Mahesh Mourya. The learned

Counsel would submit that after the accused cross-examined the

complainant on 20-6-2011, the complainant produced on record

original TDS certificate issued by the accused to the complainant. The

complainant, vide notice under Section 294 of the Criminal Procedure

Code, 1973, called upon the accused to admit or deny the genuineness

of the original TDS certificate filed on record. The learned Counsel for

the appellant would submit that although the accused opposed the

notice, the genuineness of the document was not denied. The learned

Counsel would also submit that copy of the certificate dated 07-2-2008

issued under the Maharashtra Shops and Establishments Act, 1948 is

produced before this Court in appeal. Since the accused did not deny

the genuineness of the TDS certificate in response to notice under

Section 294 of the Code of Criminal Procedure, 1973, the said

document is duly proved, is the submission.

5. The record reveals that the accused opposed the tenability

of the application under Section 294 of the Code of Criminal

Procedure, 1973 contending that the said provision is not applicable to

5 apeal191.14

summary proceedings. It is not necessary for me to record any finding

on the said contention of the accused. Suffice it to note, that Section

294 of the Code of Criminal Procedure, 1973 does not spell out the

evidentiary value of the document which is not disputed. The failure to

dispute the genuineness of the document may result, in the Court in

the exercise of its discretion, dispensing with formal proof of the

signature of the person that the document bears. The TDS certificate is

purportedly issued by the accused to the complainant. The reference in

the TDS certificate to complainant as proprietor of the establishment

does not take the case of the complainant any further since the

reference is obviously on the basis of the claim of the complainant. The

complainant has indeed placed on record a document which is

purportedly licence issued under the Maharashtra Shops and

Establishments Act, 1948. But then, there is no application preferred

for permission to lead additional evidence.

6. Having given my anxious consideration to the evidence on

record and the findings recorded by the learned Magistrate, I am of the

opinion that the view taken by the learned Magistrate is a possible and

plausible view. The view is certainly not perverse. I do not find any

compelling reason to interfere with the judgment of acquittal.

6 apeal191.14

7. The appeal is sans merit and is dismissed.

JUDGE adgokar