Punjab-Haryana High Court
Abhishek Gautam vs M/S Tirupathi Stainless Steel Traders ... on 20 December, 2023
Neutral Citation No:=2023:PHHC:165143
CRA-AS-5977-2018 -1- 2023:PHHC:165143
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
209. CRA-AS-5977-2018 (O&M)
Reserved on:16.12.2023
Pronounced on:20.12.2023
Abhishek Gautam ... Appellant
Versus
M/s Tirupathi Stainless Steel Traders and another ... Respondents
2. CRA-AS No.7987 of 2018 (O&M)
Abhishek Gautam ... Appellant
Versus
M/s Tirupathi Stainless Steel Traders and another ... Respondents
3. CRA-AS No.7988 of 2018 (O&M)
Abhishek Gautam ... Appellant
Versus
M/s Tirupathi Stainless Steel Traders and another ... Respondents
CORAM : HON'BLE MR. JUSTICE HARPREET SINGH BRAR
Present: Mr. Vaibhav Sharma, Advocate
for the appellant.
Mr. Satish Garg, Advocate and
Mr. Sumit Sangwan, Advocate
for the respondents.
*****
HARPREET SINGH BRAR, J.
1. By this common order, three appeals, details of which have been given in
the head note, are being disposed of, as the issue involved therein is similar.
However, the facts are being culled out from CRA-AS No.5977 of 2018 for the
sake of brevity.
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2. The appeal in CRA-AS No.5977 of 2018 has been preferred by the
appellant against the judgment dated 13.11.2017 passed by the Judicial
Magistrate 1st Class, Gurugram whereby respondent No.2 has been acquitted
under Section 138 of the Negotiable Instrument Act, 1881.
3. In brief, the facts are that the appellant-complainant along with respondent
No.2 and one Shri Krishan Prakash Maheshwari entered into a partnership
business of trading stainless steel pipes under the name and style of M/s
Tirupathi Stainless Steel Traders at B-129, Basement, Ardee City, Sector 52,
Gurugram. The said partnership firm was dissolved on 24.06.2015 and
respondent No.2 promised that he would pay `23,95,076/- to the appellant
towards profit, which was reduced into writing by respondent No.2 and other
outgoing partners. Thereafter, respondent No.2 on behalf of respondent No.1
issued three post dated cheques dated 20.10.2015, 20.11.2015 and 20.12.2015 for
an amount of `10 lakhs each, drawn on Bank of Maharashtra, SCO No.86,
District Shopping Centre, Sector 56, Gurugram to the appellant, which included
his profit and assured him that said cheques would be encashed on presentation.
The appellant deposited cheques dated 20.10.2015 and 20.11.2015 amounting
`10 lakhs each for encashment, which were dishonoured. The appellant issued
demand notices to respondent No.2-accused for payment of the cheque amount
and when he failed to do so, two complaints were filed against him. The
appellant also presented the third cheque dated 20.12.2015 amounting `10 lakhs
for encashment in his bank account on 24.12.2015 but the said cheque was also
dishonoured on 28.12.2015 with an endorsement of 'payment stopped by
drawer'. A demand notice of 15 days was served upon respondent No.2 on
04.01.2016 through registered post to make the payment of the cheque amount
and when he failed to do so, present complaint was filed.
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4. On finding a prima facie case against the respondents under Section 138 of
the NI Act, notice of accusation was served upon respondent No.2-accused vide
order dated 11.05.2016, to which he pleaded not guilty and claimed trial. In
order to prove his case, the appellant examined himself as CW1 and tendered
affidavit Ex.CW1/4 along with documents Ex.C1 to C9 and examined Sonu
Kumar as CW2 and thereafter closed the evidence.
5. Statement of respondent No.2-accused under Section 313 Cr.P.C. was
recorded and the incriminating evidence was put to him to which he pleaded
false implication and claimed innocence. He examined himself as DW1 and
tendered his affidavit Ex.DW1/A along with documents Ex.D1 to D6.
6. After appreciating the evidence led by both the parties, the learned trial
Court acquitted respondent No.2 from the notice of accusation framed against
him. Hence, the present appeals.
7 Learned counsel appearing for the appellant submitted that the learned trial
Court has not considered the factual aspect and the admission of respondent No.2
while deposing before the learned trial Court and wrongly placed reliance upon
the purchase order dated 14.07.2015 and cancellation of purchase order dated
03.09.2015 (Annexure P-3 colly). As per the cross-examination of respondent
No.2, it is admitted that the firm mentioned in the purchase order is owned by the
cousin sister of respondent No.2. Moreover, the particulars of the rate at which
the goods were to be delivered are not mentioned in the purchase order and first
and last consignment was scheduled to be delivered on 16.08.2015 and
16.12.2015 respectively. However, the purchase order was cancelled on
03.09.2015 on the ground of late delivery of goods whereas a perusal of Ex.C1
(Annexure A-1) indicates that respondent No.2 had decided to dissolve the
partnership with the appellant and bifurcation of the profit between the appellant,
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respondent No.2 and K.P. Maheshwari and the cheques in question as well as the
amount of cheques were duly recorded in the settlement deed. Respondent No.2
in his cross-examination admitted the execution of settlement deed Ex.C1. The
learned trial Court has failed to consider the case in the right perspective. The
cheques in question were issued on 20.10.2015, 20.11.2015 and 20.12.2015 and
the stand taken by the respondent No.2 is self-contradictory as on the one hand,
he admits the execution of settlement deed Ex.C1 and at the same time, sets up a
defence that these cheques were issued against the purchase order dated
14.07.2015, which was cancelled on 03.09.2015. The respondent No.2 gave
instructions to stop payment of cheques on 22.08.2015 pertaining to his back
account maintained with the Bank of Maharashtra. All factual aspects have
neither been considered by the learned trial Court nor dealt with, in spite of
making specific arguments in this regard. Moreover, a perusal of Ex.C1
indicates that the settlement deed was made on 24.06.2015 and the purchase
order was made at a much later stage on 14.07.2015. It is not believable that on
24.06.2015, the respondent No.2 would have any knowledge with regard to
purchase order to be placed on 14.07.2015 regarding which cheques were given
on 24.06.2015 and that too, in the absence of any rate at which the purchase
order was being made.
8. Per contra, learned counsel appearing on behalf of respondents submitted
that the impugned judgment is well reasoned and the learned trial Court has
taken all the facts into consideration. Moreover, there is nothing on record that
the appellant and respondent No.2 were partners and in the absence of any
partnership deed, the dissolution deed dated 24.06.2015 Ex.C1 is of no
consequence and the same is liable to be eschewed from the evidence. The
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respondent No.2 has proved on record that the cheques given as security by him
had been misused by the appellant.
9. Having heard learned counsel for the parties and after perusing the record
of the case, this Court finds force in the arguments advanced by the counsel
appearing for the appellant that the learned trial Court has not considered the
factual position as amplified by him before this Court. In view of the aforesaid
facts and circumstances of the case, the judgment dated 13.11.2017 passed by the
Judicial Magistrate 1st Class, Gurugram is set aside and the matter is remanded
back to the trial Court for fresh consideration in accordance with the factual
matrix and the evidence led by the parties. Parties are directed to remain present
before the trial Court on 08.01.2024.
10. All appeals are partly allowed in above terms. However, nothing observed
hereinabove shall be construed as expression of opinion of this Court on merits
of the case and the trial Court shall proceed without being prejudiced by
observations of this Court.
(HARPREET SINGH BRAR)
JUDGE
December 20, 2023
Pankaj*
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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