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2018 (9) TMI 133
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....al Case No. 8250/2012, held that the appellant failed to prove that he was the Proprietor and there was also insufficient evidence on record to prove that the cheque in question was indeed signed by the respondents or that the same had been issued in discharge of legal debt or liability. On this basis, the respondents (original accused) have been acquitted. 2. According to the appellant (original complainant) M/s Century Steel Traders was a proprietary concern of which Rajiv Shivji Sharma was the Proprietor. The said proprietary concern was in the business of sale and purchase of steel and supply of M.S. scrap. The respondents were Directors of the respondent Company M/s Polaris Steel Casting Pvt. Ltd. and that they had allegedly contacted the appellant for supply of M.S. scrap and steel. On this basis, on 27.02.2011 the appellant gave a quotation to supply M.S. scrap to the respondents @ Rs. 25,500/- per metric tonne. On this basis, the respondents allegedly placed an order of 1000 metric tonnes of M.S. scrap for a total amount of Rs. 2,55,00,000/- on 1.3.2011. It was the case of the appellant that thereafter on 25.03.2011, 96 tonnes of M.S. scrap was delivered to the resp....
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....e disputed cheque and the aforesaid other documents were forged. The handwriting expert was cross-examined and he stated that he was not provided with original documents and that he had given opinion on the basis of the photocopies. 7. After the evidence was closed and the complaint was to be decided, the appellant filed an application for placing on record documents from the office of the Inspector under the Bombay Shops and Establishment Act, 1948, showing that the complainant was indeed the Proprietor of M/s Century Steel Traders (appellant). This was opposed by the respondents and by order dated 22.12.2015, the trial Court rejected permission to the appellant (complainant) to file certificate/document issued by the Inspector under the Bombay Shops and Establishment Act, 1948. This order was challenged by the appellant by filing Criminal Writ Petition No. 58 of 2016 before this Court. By judgment and order dated 20.01.2016, this Court allowed the writ petition, setting aside the said order of the trial Court and allowed the appellant to file the said document, granting liberty to both sides to lead such evidence as was necessary, strictly restricted to the said document. Libert....
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.... the transaction between the parties, he had not signed as the Proprietor. 11. The trial Court took into consideration the aforementioned evidence and material on record and by the impugned judgment and order, it found that even the said certificate at Exh.126 was not sufficient to prove that the said complainant Rajiv Shivji Sharma was indeed the Proprietor of the appellant M/s Century Steel Traders. Consequently the complaint was itself found to have been filed without authority. Apart from this, the trial Court found that the evidence of the handwriting expert and his report demonstrate that there was serious doubt about whether the signatures on the disputed cheque and the documents on record were that of the respondents. It was also found that there was lack of evidence placed on record by the appellant to show that delivery of M.S. scrap was indeed made to the respondents. On this basis, the trial Court found that the appellant had failed to prove its case and accordingly the respondents stood acquitted. 12. Mr. M.R. Sharma, learned counsel appearing for the appellant, submitted that the findings rendered by the trial Court were unsustainable. It was submitted that on the q....
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....mstances, the contention raised on behalf of the appellant deserved to be rejected. Apart from this, it was pointed out that the evidence of the handwriting expert was sufficient to show that the signatures on the disputed cheque and other documents were forged. The admissions made in cross-examination by the witness of the appellant were sufficient to show that there had been no transaction between the parties and that the entire complaint was based on false assertions. It was submitted that there was sufficient material to show that the defence of the respondents was probable and that since the trial Court had taken a possible view in the matter, the appeal deserved to be dismissed. 14. Heard counsel for the parties. There are two issues that arise in the present appeal. Firstly, whether the said Rajiv Shivji Sharma was entitled to claim that he was a Proprietor of the appellant M/s Century Steel Traders and secondly, whether the appellant had proved the foundational facts regarding the transaction between the parties, supply of M.S. scrap to the respondents and issuance of disputed cheque by the respondents towards payment for such supply. In case such facts stood proved, the p....
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..... This Court in its order dated 20.01.2016, while allowing the appellant to place on record the said certificate (Exh.126) had granted liberty to both sides to lead evidence in respect of the said document. The Hon'ble Supreme Court, in its order dated 26.02.2016, had observed that it was open for the respondents to file an application before the trial Court to call for the original record in order to test the veracity of the said certificate (Exh.126). 17. In this situation, when an application (Exh.137) was filed by the respondents before the trial Court for de-exhibiting of the said certificate (Exh.126) and for calling the original record to test its veracity, the appellant opposed the said application. This conduct on the part of the appellant clearly shows that it had something to hide. In view of the specific liberty granted by the Hon'ble Supreme Court, the application filed by the respondents could not have been opposed by the appellant. Yet, it was opposed and the trial Court by its order dated 17.03.2016 rejected the application of the respondents. In this situation, it clearly does not lie in the mouth of the appellant that the respondents had not objected to the said....
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....e of the Inspector under the Bombay Shops and Establishment Act, 1948, shows that the said Rajiv Shivji Sharma had no evidence to prove that he was indeed the Proprietor of the appellant. Therefore, the finding rendered by the trial Court in this regard cannot be interfered with. The said Rajiv Shivji Sharma had no authority to file the complaint on behalf of the appellant and on this ground alone the complaint deserved to be rejected. 19. As regards the claim of the appellant that presumption under Sections 118 and 139 of the Negotiable Instruments Act, 1881 operated in its favour, it was first necessary for the appellant to have proved the foundational facts in support of its complaint. The case of the appellant was that the respondents had expressed their desire to purchase M.S. scrap from it and in that regard quotation dated 27.02.2011 (Exh.37) had been issued. The purchase order dated 1.3.2011 (Exh.38) was allegedly placed for 1000 tonnes of M.S. scrap by the respondents and that by delivery challans dated 25.03.2011 and 6.4.2011 (Exhs. 39 and 40) 96 tonnes and 11 tonnes of M.S. scrap were allegedly delivered by the appellant to the respondents. It was claimed that the dispu....
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....uld be placed on the report. If that be so, there was material to show that the presumption under the provisions of the said Act was not triggered in the present case. 21. Apart from this, cross-examination of the witness who appeared on behalf of the appellant on the nature of transactions between the parties also becomes important. A perusal of the cross-examination of the said witness shows that he has clearly admitted that the appellant had no transaction prior to 2012 with the respondents. This means that the transaction on the basis of which the complaint was filed, was the first and only transaction between the parties. The said witness further admitted that he had no material to show that the aforesaid amount of M.S. scrap was actually delivered to the respondents, other than the aforesaid two delivery challans (Exhs. 39 and 40 dated 25.03.2011 and 6.4.2011). He could not explain as to why there was no mention of any order number, date of the order and other details in the said delivery challans. He could not explain as to why details pertaining to the trucks like their registration number etc. were not mentioned in the said challans or any document to show that delivery o....
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....ondents had issued the cheque in discharge of legal debt or liability. 24. It is trite that in criminal jurisprudence when two views are possible, the view that is in favour of the accused is to be adopted. The trial Court in the present case has taken a possible view of the matter and there is no reason why the same is required to be reversed. The appellant has failed to demonstrate any justifiable reason for interfering with the impugned order passed by the trial Court. 25. The appellant filed Criminal Application Nos. 203 of 2018 and 256 of 2018 under Sections 311 read with 391 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeking permission to place on record documents and for permission to lead further evidence and to call and examine Inspector from the Department of Shops and Establishment. The said applications moved on behalf of the appellant cannot be permitted at this stage. The reliance placed on behalf of the appellant on the judgment of the Hon'ble Supreme Court in the case of Ashok Tshering Bhutia .vs. State of Sikkim- (2011) 4 Supreme Court Cases 402 in this regard, is also misplaced. In the said judgment, the Hon'ble Supreme Court has laid down that additional....