Madhya Pradesh High Court

Man Industries (India) Ltd. Through ... vs M/S N.V. Kharote Engineers And ... on 21 December, 2023

Author: Anil Verma

Bench: Anil Verma

1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 21 st OF DECEMBER, 2023
CRIMINAL APPEAL No. 12119 of 2022

BETWEEN:-
MAN INDUSTRIES (INDIA) LTD. THROUGH
AUTHORIZED OFFICER SHRI SANJAY JAIN S/O SHRI
KESHRIMAL JAIN, AGED 38 YEARS, OCCUPATION:
SERVICE, 257 B SECTOR 1, PITHAMPUR DISRICT DHAR
(MADHYA PRADESH)

.....APPELLANT
(BY SHRI UPENDRA KUMAR CHOUKSE - ADVOCATE)

AND
1. M/S N.V. KHAROTE ENGINEERS AND
CONSTRUCTORS ADD. S.NO. 3/2, PLOT NO. 1,
NEAR CIVIL DEFENCE TRAINING CENTRE,
PARVATI PUNE (MAHARASHTRA)

2. MR. RATNAKAR KHAROTE, PARTNER
M/S N.V. KHAROTE ENGINEERS AND
CONSTRUCTORS ADD. S.NO. 3/2 PLOT NO.1, NEAR
CIVIL DEFENCE TRAINING CENTRE, PARVATI
PUNE (MAHARASHTRA)

3. MR. SANJAY KHAROTE, PARTNER M/S N.V.
KHAROTE ENGINEERS AND CONSTRUCTORS
S.NO. 3/2 PLOT NO. 1 NEAR CIVIL DEFENCE
TRAINING CENTRE, PARVATI PUNE
(MAHARASHTRA)

.....RESPONDENTS
(BY SHRI BURHANUDDIN AZAD - ADVOCATE)

This appeal coming on for admission this day, th e court passed the
following:
ORDER

Record of the court below has been received.

2. Appellant has filed this appeal under Section 378 of Cr.P.C alongwith I.A. No. 16374/2023 for grant of leave to appeal being aggrieved by the impugned order dated 15.10.2022 passed by JMFC Indore in Criminal case No. 9603160/2003, whereby the complaint case under Section 138 of the Negotiable Instruments Act (in short "NI Act") filed by appellant has been dismissed.

3. Brief facts of the case are that appellant/complainant has preferred a complaint case before the JMFC Indore under section 138 of NI Act stating therein that respondent No. 1 /accused, a private partnership firm is engaged in the business of construction and respondents no. 2 and 3 are its partner. The appellant/ company supplied goods to respondent no. 1 as per their purchase

orders and for part-payment of same, respondent no. 1 issued three cheques with different dates to appellant under the promise that when the said cheques will be presented on or after the dates mentioned on them they will be honored. But when appellant presented the cheque bearing No. 218296 dated 21.5.2023 of ICICI Bank for an amount of Rs. 30 lakhs, with its banker, the same was returned with remark insufficient fund. Despite receipt of legal notice sent by appellant, respondents have not paid the amount in question. The trial court after leading the evidence by both the parties has dismissed the complaint on the ground that appellant has failed to prove that cheque was issued for discharge of any debt or other liability. Being aggrieved by the aforesaid order, the appellant has preferred this appeal with IA.

4. Learned counsel for appellant submits that learned trial court has failed to consider the provisions of law and also the law laid down by the Hon'ble Supreme court wherein it has been laid down that in cases under the Negotiable Instruments Act, the burden will be on the accused to prove that the cheque

was not issued for any debt or other liability. The appellant by producing oral

as well as documentary evidence has proved that respondent has failed to make the payment of its dues for supply of goods. The trial court has wrongly held that the account statement (Ex.P-20) is a questionable document and appellant with malafide intention failed to produce its account statement or stock register. The findings given by the trial court is contrary to law and facts and evidence available on record. He has placed reliance upon judgment of Hon'ble Supreme court in the matter of APS Forex Services Pvt Ltd. Vs. Shakti International Fashion Liners and others reported in AIR 2020 SC 945 and order dated 12.8.2022 passed in Criminal appeal No. 1233-1235 of 2022 in the matter of P.Rasiya Vs.Abdul Nazer and others . Hence he prays that leave to appeal be granted and the impugned order be set aside.

5. Per contra learned counsel for respondents opposed the prayer by submitting that the impugned order passed by the trial court is based upon cogent evidence available on record and no interference is required. He has placed reliance upon the judgment passed by Hon'ble Apex court in the matter of Basalingappa Vs. Mudibasappa reported in(2019) 5 SCC 418.

6. I have heard learned counsel for the parties and perused the record.

7. A bare perusal of Chapter XIII of 1881 Act provides for presumption as to negotiable instruments and Section 139 provides for presumption in favour of holder which read as under:

"10. Chapter XIII of the Act, 1881 contains a heading "Special Rules of Evidence". Section 118 provides for presumptions as to negotiable instruments. Section 118 is as follows:-

"118. Presumptions as to negotiable instruments. --Until the contrary is proved, the following presumptions shall be made:--

(a) of consideration --that every negotiable instrument was made or drawn for consideration, and that every such

instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;

(b) as to date --that every negotiable instrument bearing a date was made or drawn on such date;

11. Next provision, which needs to be noticed is Section 139, which provides for presumption in favour of holder. Section 139 lays down:-

" 1 3 9 . Presumption in favour of holder. --It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability."

8. As per law laid down by the Hon'ble Apex court in case of APS Forex Services and P. Rasiya (supra) it has been held that once the issuance and signature on the cheque is admitted, there is always a presumption in favour of complainant that there exist legally enforceable debts or liability. The Hon'ble Apex court in case of Basalingappa (supra) has held as under:-

"12.There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal."

9. It is noteworthy that respondent no. 1 is a registered partnership firm. The respondent contended that as per terms and condition of said purchase order, payment of Rs. 15 lakhs was in advance and balance by post-dated

cheques after receipt of material at site. The respondent /accused Sanjay Kharote (DW-1) in para 34 of his cross examination categorically stated that only Rs. 2,29,53,370/- has been paid to complainant and as per agreed terms, and despite issuance of notice, appellant has not made delivery of goods. The appellant/complainant did not produce any cogent evidence to establish that he has delivered the goods to respondent. Therefore, the finding given by the trial court appears to be just and proper.

10. It is also noteworthy that respondents have preferred civil suit (Ex.D-

5) for permanent injunction before the Civil Court Senior Division Pune regarding transaction against the appellant. The said Court passed judgment and decree dated 7.4.2007 against the appellant. The appellant did not file any relevant document showing that he has ever challenged the said judgment and decree. Therefore, the said judgment and decree became final against the appellant. On the basis of judgment passed by the civil court it is proved that said post dated cheques have been issued only as per terms and conditions agreed between both the parties which was not complied with by appellant. The material fact of passing of judgment and decree of the civil court was suppressed by the complainant/appellant. Therefore, trial court has rightly drawn presumption against the complainant. The respondents have rebutted the presumption by adducing cogent evidence before the trial court. The appellant has not produced audit report of respondent no. 1 being a partnership firm for establishing his case. Therefore, trial court has rightly drawn presumption against him.

11. In view of the above analysis, no case is made out for grant of leave to appeal. Hence I.A. No. 16374/2022 filed under section 378(4) Cr.P.C. for grant of leave to appeal is hereby rejected.

12. Consequently, criminal appeal is accordingly dismissed.

13. Let a copy of this order alongwith record of the trial court be sent to the concerned trial court for information and necessary compliance.

(ANIL VERMA) JUDGE BDJ