M/S. Nam International Lthru. ... vs Sachin Sardeshpande
2017 Latest Caselaw 8857 Bom

                                                                                        judg. apeal 284.08.doc
                                                          1


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

                                 CRIMINAL APPEAL NO. 284 OF 2008


M/s NAM International, a Partnership Firm,
through its Partner Mr. Naushad s/o Jahangir Contractor,
Aged about 33 years, Occ.-Business, R/o.-'Mehendu Lotus',
12/1-5, Hingna Road, Nagpur.                                                              .. APPELLANT

                                      -v e r s u s-

Shri Sachin Sardeshpande,
Aged about 39 years, Occ.- Business, Proprietor of M/s P.S. Lubricants,
having its place of business, Old Warora Naka Railway Gate,
Chandrapur, R/o.-Behind Jail, Chandrapur.                                                  .. RESPONDENT
---------------------------------------------------------------------------------------------------------------------
Mr. P.P. Kotwal, Advocate for appellant.
Mr. R. Badhe, Advocate for respondent.
---------------------------------------------------------------------------------------------------------------------.

                                                 CORAM: MRS. SWAPNA JOSHI, J.

DATED : 20th November, 2017

ORAL JUDGMENT

This Appeal has been directed against the judgment and order dated 15-12-2007 delivered by the learned Special Judge, Nagpur in Summary Criminal Case No.252 of 2005 (old Case No.129 of 1999), whereby the learned Special acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act. 2] I have heard Mr. P.P. Kotwal, the learned Counsel for appellant/original complainant (hereinafter will be referred as 'the original complainant') and Mr. Ritesh Badhe, the learned Advocate for the respondent (hereinafter will be referred as 'the accused'). I have perused the entire evidence on record led by the prosecution and the judgment passed by the learned trial Judge.

3] The brief facts of the case are that :-

The accused is the proprietor of M/s P.S. Lubricants and is dealing at

judg. apeal 284.08.doc

Chandrapur. The firm of the original complainant used to deal in the sale of lubricants manufacture by Tide Water Oil Company India Limited. The transaction between the firm of the original complainant and the accused started in the month of October, 1995. It was agreed that the accused would purchase various lubricants from the original complainant on 30 days credit and would pay the amount of the goods purchased within 30 days from the date of the purchase. From October 1995, the original complainant started supplying various kinds of lubricant to the accused and the accused purchased those goods from the original complainant from time to time on credit basis. It is the case of the original complainant that he used to visit Chandrapur due to which the business relations as well as friendly relations were developed between them. Accordingly, the original complainant started supplying goods on credit to the accused and till the date filing of complaint, the accused was to pay to the firm of the original complainant an amount of Rs. 2,96,966.99/- towards the unpaid price of the goods purchased on credit from time to time from the firm of the original complainant. On making demand of the said amount by the original complainant, the accused issued cheque bearing no.0325355 drawn on the Bank of Baroda, Chandrapur in the name of NAM International on 22-09-1998 for Rs. 10,000/- to the original complainant out of the total outstanding amount in discharge of the liability in part towards the payment of the price of the lubricants purchased from the firm of the original complainant. The said cheque was presented by the original complainant for encashment with the banker of the firm Nagpur Nagarik Sahakari Bank, Dharampeth, Nagpur on 18-01-1999. The said cheque was returned unpaid to him by the banker with its memo dated 02-02-1999 along with memo issued by the banker of the accused dated 28-01-1999 for the reason having "insufficient funds". The original complainant issued a legal notice to the accused for the payment of amount of Rs. 10,000/- and asked him to pay the said amount within 15 days from the date of receipt of the said notice. However, the said notice was returned back on 05-03-1999. Since the accused failed to make the payment, the original complainant filed the present complaint before the Special Court.

judg. apeal 284.08.doc

4] It is the defence of the accused that no amount of the original complainant was outstanding against him and the disputed cheque was not given on 22-09-1998. It was given as security since the original complainant had assured the accused of giving agency of other goods.

5] It is well settled that as per the provisions of Sections 118 and 139 of the N.I. Act, it is the responsibility of the original complainant to prove that the cheque was issued towards the discharge of liability and the accused has to adduce the evidence to disprove this presumption. It is necessary for the accused to prove his defence beyond reasonable doubt. But it is expected from him that the said defence shows the preponderance of probabilities.

6] In order to prove his contention, the original complainant examined himself on oath as CW-1. The original complainant has deposed before the Court as per the case put up by him. According to CW-1, an amount of Rs. 2,96,966.99/ was outstanding against the accused. When the original complainant demanded the said amount, the accused issued the disputed cheque on 22-09-1998 for Rs. 10,000/-, out of the total amount. The said cheque was presented by CW-1 on 18-01-1999. CW-1 also relied upon the copy of cheque return memo dated 28-01-1999 (Exhibit 39) and copy of cheque return advice (Exhibit-40). Significantly, the original complainant did not produce any documentary evidence to show the liability resting on the accused. 7] Dilip Patil (CW-2) deposed that he was working in the Bank of Baroda at Chandrapur and he filed the specimen handwriting pertaining to Account No.23667 (Exhibit 60). He produced the bank statement of the said account for the period from January, 1999 to May, 1999 (Exhibit-70).

8] Significantly, the accused did not step into the witness box. 9] CW-1 in his cross examination admitted that since October, 1995, he is dealing in the business with the accused. He stated that he used to send the bills of the goods to the accused. He used to maintain the ledger book. Significantly, the ledger book has not been produced by the original complainant. The original

judg. apeal 284.08.doc

complainant failed to produce the detail statement showing that amount of Rs. 2,96,966.99/- was outstanding against the accused. The complainant failed to state whether date 22--09-1998 on the disputed cheque (Exhibit-38) was written by the accused. The original complainant admitted that the contents in the said cheque were in different ink and the date was in different ink. The original complainant stated that he had no idea as to who had put the signature on the said cheque. A case was put up to the original complainant that he had accepted the cheque the next date, from the accused and filed a false case against the accused by misusing the said cheque. 10] From the the testimony of the original complainant it is not clear as to for what purpose the disputed cheque was given to the original complainant by the accused. However, in the statement under Section 313 of Cr.P.C. the accused specifically stated that he had given the said cheque to the original complainant as security for getting new dealership. He further stated that he was not concerned with the dealings between him and the original complainant and according to him a false case has been filed by the original complainant against him by misusing the said cheque.

11] The case put up by the accused appears to be convincing, for the simple reason that the original complainant has not produced any documentary evidence to show that an amount of Rs. 2,96,966.99/- was outstanding against the accused. The original complainant has failed to produce the ledger book before the Court which he maintained during the course of business. From the said fact, it can be inferred that the original complainant had not maintained the ledger book and the amount of Rs. 2,96,966.99/- was not outstanding against the accused. The fact that the cheque (Exhibit-38) reveals the name of the original complainant, amount and the signature of the accused in one ink and the date thereon put up in different ink. Although the said fact is admitted by the original complainant, he had not offered any explanation in that regard.

12] It is worthy to note that the original complainant has failed to obtain any receipt from the accused to show that the amount of Rs. 2,96,966.99/- was

judg. apeal 284.08.doc

outstanding against the accused. Significantly, the original complainant has failed to take any action for recovery of the remaining outstanding amount which was due from the accused and simply the cheque of Rs. 10,000/- was obtained from the accused. 13] According to the original complainant, he had received the cheque dated 22-09-1998 of Rs. 10,000/- out of the outstanding amount of Rs. 2,96,966.99/-. He presented the said cheque on 18-01-1999 to his bank. The said cheque was dishonoured and the original complainant received the intimation about the same on 02-02-1999. The said cheque issued by the accused is from the same account. It is surprising to note that on 02-02-1999 although the original complainant came to know that the said cheque was dishonored, still he accepted the disputed cheque from the accused on 22-09-1998 from the accused. The said action on the part of the original complainant appears to be unnatural. The learned trial Judge has rightly come to the conclusion that it was not proper on the part of the complainant to deposit the second cheque in the same account, although the first cheque issued by the accused from the same account was dishonoured.

14] It is already discussed above that the accused has not written the date on Exhibit-38. In these circumstances, the defence of the accused that he had given the disputed cheque towards the security amount for Cutting Oil is to be accepted. The original complainant has failed to produce any documentary evidence to show that an amount of Rs. 2,96,966.99/- was outstanding against the accused. In these circumstances, the case put up by the defence is to be accepted. Thus, in view of the facts and circumstances, it is held that the original complainant has failed to prove that the amount of Rs. 2,96,966.99/- was outstanding against the accused and accordingly the accused issued the cheque of Rs. 10,000/- and the said cheque was dishonoured. Thus, from the case put up by the original complainant, it is noticed that there is no documentary evidence to show that it was legally enforceable liability of the accused to make the payment of Rs. 2,96,966.99/-. The original complainant has failed to prove that the amount of Rs. 2,96,966.99/- was outstanding against the goods which were sold by him to the accused.

                                                                    judg. apeal 284.08.doc





15]                       In the case of Mahendra Pratap Singh vrs State of Uttar

Pradesh reported in (2009) 11 SCC 334, the Hon'ble Apex Court has held that, if on appraisal of evidence and on considering relevant attending circumstances, it is found that two views are possible, one for acquitting accused and other for convicting accused, in such a situation rule of prudence should guide High Court not to disturb order of acquittal made by trial Court, unless conclusions of trial Court drawn on evidence on record are found to be unreasonable and perverse or unsustainable, the High Court should not interfere with the order of acquittal.

16] In view of above circumstances, the appeal filed by the original complainant deserves to be dismissed. Hence, the following order is passed.

Order

Criminal Appeal No.284 of 2008 is dismissed.

JUDGE

Deshmukh