Vishal Machinery Thr. ... vs M/S Dudhankar & Sons, Nagpur
2017 Latest Caselaw 8525 Bom

 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

 -------------------------------------------------------------------------------------------
          Mrs. Mohini Sharma holding for Mr. S.V. Purohit, counsel 
 for  the Appellant.
          None for Respondent.
 -------------------------------------------------------------------------------------------

                                            CORAM:      
                                                        ROHIT B. DEO, J. 

DATE:

NOVEMBER 08, 2017

ORAL JUDGMENT:

Challenge is to the judgment and order dated

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

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

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.

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

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