TaxTMI 
TaxTMI 
2020 (1) TMI 574
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....aints were filed as the accused in both the complaint were different, the complainant being common. 3. Complainant and two accused were shareholders of one Shree Sai Baba Sand Dredging Company Private Limited (the said Company). Complainant, through himself and through others, held 2000 fully paid equity shares in the said company. It is not necessary to go into the background of the companies and how it works, suffice to say complainant wanted to exit and offered to sell 2000 shares to the two accused. Complainant personally had only 400 shares in his name, whereas the remaining 1600 shares were held by his wife (400 shares), his son (400 shares), his friend one Rizwan Gulam Murtaja Dolare (400 shares) and Farbida Dolare (400 shares). The accused agreed to purchase the 2000 shares for lump sum consideration of Rs. 18 lakhs. The understanding between the two parties were reduced to writing in the form of a Memorandum of Association/Understanding dated 3rd September 1996. As per the MOU, two cheques of Rs. 3 lakhs each dated 30th September 1996 and 31st October 1996 were issued. The balance Rs. 12 lakhs were to be paid in installments by issuing 12 post dated cheques of Rs. 1 lak....
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....ak as mentioned in Schedule 'A' hereunder written. 2. It is mutually decided that Shri. Harendra Ramchandra Pathak shall sign a letter of resignation from his Directorship/chairmanship of Shri. Sai Baba Sand Dredging Company Private Limited and also transfer forms in respect of the shares; and the said resignation letter and original shares alongwith the transfer forms, duly filled and signed shall be kept in the custody of a third person, who will release the same to Shri. Rajendra and Shri. Dharmendra Ratan Mhatre only after the full and final payment is made to Shri. Harendra Ramchandra Pathak as mentioned in the Schedule 'A' annexed hereto. Schedule 'A' Schedule of payments of Rs. 18.00 lacs to made to Shri. H.R. Pathak:- Rs. 300000 /- by Chq.No. 171714 dated 30.09.1996. Rs. 300000/- by Chq.No. 171715 dated 31.10.1996. Both cheques drawn on Parsik Janata Sahakari Bank Ltd, Agroli, Kokan Bhavan, New Bombay - 400 614. Rs. 100000/- by Chq.No. 087476 dated 01-11-1997 drawn on Central Bank, Dombivili (E) - 421 202. Rs. 100000/- by Chq.No.030784 dated 01-12-97 drawn on Parsik Janata Sahakari Bank Ltd., Agroli, Kokan Bh....
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....ice. 6. Process was issued and accused denied liability and claimed to be tried. In both the complaints, complainant led evidence of three witnesses, the first witness being himself as PW-1 and the other two are from the Bank to prove the cheques being deposited and dishonoured. The respondents have not disputed that the cheques, which are subject matter of the two complaints, have been issued. There is also no disputes that the cheques were dishonoured. It is also not disputed that a statutory notice under Section 138 of the said Act was issued by complainant because there is also a reply sent to the statutory notice. Mr. Datar submitted that therefore, under Section 139 of the said Act, there is a presumption that the cheques issued were for discharge of a debt/liability. Mr. Bali immediately rebutted saying that this presumption is certainly a rebuttable presumption. 7. Under Section 138 of the said Act where any cheque drawn by a person on an account maintained by him is drawn in favour of another person for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, the said person shall be punished with imprisonment for a term whi....
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....n the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. It is not necessary for the accused to come in the witness box in support of his defence because Section 139 imposed an evidentiary burden and not a persuasive burden. With this settled position in law, let us proceed further. 10. The subject matter of the entire dispute is the MOU. Strangely, complainant is relying on the amounts payable based on the MOU but chooses not to produce the MOU. In the cross examination, complainant admits that he executed the said MOU dated 3rd September 1996 for selling 2000 shares, which were with him, including shares of his wife, son, friend Mr. Dolare and his wife. At the same time, for reasons I am unable to fathom, complainant says he is not inclined to produce the MOU in these proceedings because he has produced it in a civil suit, which had already been filed. Mr. Datar states that Mr. Bali's clients had filed a suit for Rs. 6 lakhs and for cancellation of MOU, which was dismi....
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....ss examination that he did not inform the accused that he collected the cheques from Mr. Saranghdar. PW-1 also states in his cross examination that he does not know whether the shares were transferred in the name of accused or whether all shares still stand in his name or in the name of his wife or in the name of his son or in the name of his friend etc. PW-1 says he does not know whether the position of the shares is still as it is as it was prior to 3rd September 1996. The Trial Court after considering the MOU, has come to a conclusion that the time to make the payment had not arisen because as per Clause (2) of the MOU, it was mutually decided that complainant shall sign a letter of resignation from his Directorship of the said company, and also transfer forms in respect of the shares and the said resignation letter and original shares alongwith the transfer forms duly filled and signed shall be kept in the custody of Mr. Saranghar, the Chartered Accountant, who will release the same to the accused only after the full and final payment is made to the complainant as mentioned in Schedule 'A' of the MOU. Complainant has not produced any evidence to show that he had deposited the l....
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....owers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the the accuse....