Bombay High Court
Chandrala Motors A Partnership Firm ... vs Ayyub Kasam Shaikh on 1 February, 2024
2024:BHC-AUG:2185
(1) crap241.18
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 241 OF 2018
Chandrala Motors a partnership firm .. Appellant
Through its partner
Girish Govind Shahapurkar
Age. 49 years, Occ. Business,
R/o. Plot No.288, N-1, Cidco,
Aurangabad.
Versus
Ayyub Kasam Shaikh .. Respondent
Age. Major, Occ. Business,
R/o. A/p. Shingi, Tq. Gangapur,
Aurangabad.
Mr.Uday V. Khonde, Advocate for the appellant.
Mr.Yogesh R. Shinde h/f. Mr. Rahul R. Karpe, Advocate for the respondent.
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 16.01.2024
PRONOUNCED ON : 01.02.2024
J U D G M E N T :
-
01. Feeling aggrieved by the judgment and order passed by the
learned Judicial Magistrate, First Class, (Court No.12) Aurangabad, in S.C.C.
No.8269 of 2013 dated 18.09.2017, the original complainant has preferred
the instant appeal questioning the legality and maintainability of the said
judgment and order.
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02. Present appellant instituted a proceeding under the provisions of
the Negotiable Instruments Act against present respondent on the premise
that the complainant is a partnership firm and authorized sales and service
dealer of earthmoving machines/equipments. The respondent approached
them for purchase of backhoe loader. He borrowed loan of Rs.16,00,000/-
from Shriram Transport Finance Company by mortgaging his land. According
to the complainant, total price of the loader is Rs.20,50,169/-. The amount of
Rs.24,500/- was to be paid by the customer towards insurance policy and as
such total amount of backhoe loader was Rs.20,74,669/-. Considering the
loan amount and cash amount of Rs.2,24,500/- paid by way of cash by the
accused, the amount due towards accused/respondent was Rs. 2,50,000/-.
The said liability was to be completed. The machinery was already delivered
and accepted by the respondent of which there is no dispute. Towards
repayment of Rs.2,50,000/- initially two cheques were issued, but same were
dishonoured and therefore third cheque of amount of Rs.2,50,000/- was
issued. However, when it was presented with the bank, it returned
dishonoured and therefore after putting the accused/respondent to notice,
S.C.C. bearing No.8269 of 2013 was instituted by the complainant. In the
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above complaint after issuance of process, the respondent/accused appeared
and resisted the complaint and denied the entire case set up by the
complainant. Both the parties adduced oral and documentary evidence.
After appreciating the same, the learned JMFC reached to a
conclusion that the complainant failed to prove that there was legally
enforceable debt. Moreover, the learned Trial Judge held that the accused
rebutted presumption available under the Negotiable Instruments Act and
thereby vide above judgment dated 18.09.2017, acquitted the accused.
Precisely said judgment is assailed by filing the instant appeal.
03. Heard both the sides at length. After considering the submissions
advanced, it appears that the judgment of the learned Trial Court is
questioned firstly on the ground of failure to appreciate oral and documentary
evidence; secondly the learned Trial Court erred in holding that there was no
legally enforceable debt; thirdly the cheques and signature were undisputed
and therefore the case ought to have been accepted and fourthly the learned
Trial Court failed to consider and appreciate the undertakings given by the
accused.
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For all above reasons, the judgment is sought to be quashed and
set aside.
04. In answer to above, the learned Counsel for the
accused/respondent submits that there is no dispute that machinery/vehicle
was purchased by raising loan as well as contributing his own share and that
the due amount was already paid. However, excess amount was demanded by
the complainant, even when there was nothing remaining at the end of the
accused and there was no legally enforceable debt. The learned Counsel
invited attention of this Court to the depositions of PW-1 as well as PW-2 and
would submit that there is clear admission about receipt of amount and
issuance of acknowledgment towards the same. Therefore, there was no
legally enforceable debt and therefore there was no question of issuing any
cheque. That, learned Trial Court has correctly appreciated the evidence
adduced by the complainant. That, a false case is apparently set up and
excess amount was tried to be extracted. That, on the contrary, the accused
has rebutted the presumption available under sections 118 and 139 of the
Negotiable Instruments Act. The learned Trial Court has committed no error
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in acquitting the accused and he prays for dismissing the appeal for want of
merit.
05. On re-appreciation of evidence, here, there is no dispute that the
complainant is a partnership firm. Further, there is no dispute about the
transaction of purchase of backhoe loader from the complainant, who is an
authorized sales and service dealer. Evidence of complainant shows that loan
was raised from Shriram Transport Finance Company to the tune of
Rs.16,00,00/- and therefore, margin money turns out to be 4,50,169/-. The
complainant does not disown Exh.19, which is a delivery order issued by the
said financier, reflecting price of the machinery as Rs.20,50,169/- only. The
complainant in cross has admitted receipt of Rs.4,50,000/- on 23.01.2010 and
of Rs.169/- on 27.12.2011. Accused came with a case that he had paid
Rs.2,24,665/- towards the remaining dues regarding which there does not
seem to be dispute at the end of complainant. Therefore, if accused has paid
above amount, then the balance should be Rs.2,25,504/- and not the amount
claimed by complainant to the tune of Rs.2,50,000/-. In fact, amount of
Rs.24,496/- apparently appears to be excess than what is liable.
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It is settled law that only legally enforceable debts are required to
be demanded and paid. There is no explanation from the complainant in his
evidence as to how amount of Rs.2,50,000/- which is reflected on the
instrument was remaining to be paid by accused.
06. In the light of above discussion and on re-appreciation, it is
emerging that complainant failed to establish that the amount reflected on the
cheque was the legally enforceable debt and that it had remained unpaid.
Apparently for excess amount, for which there is no clarification, instrument
seems to have been drawn even when there was no legally enforceable debt.
Hence, though initial presumption on the strength of transaction and cheque
can be drawn, unless legally enforceable liability is established, offence cannot
be said to be squarely brought home. When there is apparently a mismatch
between liability by way of dues, and the amount reflected on the cheque in
question, case cannot be said to be established by complainant.
07. Having gone through the judgment under challenge, there seems
to be correct appreciation. The findings and conclusion being in consonance
with the evidence on record, judgment cannot be said to be perverse, illegal or
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not maintainable. No case being made out on merits in appeal, I proceed to
pass the following order:
ORDER
(i) The criminal appeal is dismissed.
[ABHAY S. WAGHWASE, J.]
snk/2024/JAN24/crap241.18
