TaxTMI 
TaxTMI 
2020 (11) TMI 1009
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....td., ECC Division at Rysina Complex, Sea Bird Project, Package-4, Karwar, and to complete the same, the accused purchased PVC wires vide Credit Bill No.105, dated 24.5.2005, of Rs. 2,57,797/- with the complainant-Ccompany as they used to maintain the running account with the complainant-Company and towards payment of the said amount, accused has issued a cheque in favour of the complainant-Company for a sum of Rs. 2,57,797/-, dated 4.6.2006. When the same was presented, it was dishonoured with an endorsement `not arranged for/exceeds arrangement'. Thereafter, the complainant-Company issued a legal notice dated 3.7.2006 through Registered Post Acknowledgement Due and under Certificate of Posting, demanding repayment of the cheque amount. In spite of receipt of the notice, the accused failed to give any reply and hence, the complaint was filed. 4. The complainant-company in order to prove its case, has got examined its General Power of Attorney Holder as PW-1 and Managing Director as PW-2 and got marked documents from Exs.P-1 to P-18. The statement of the accused was recorded under Section 313 of Cr.P.C. and accused did not choose to lead any defence evidence. The trial Judge afte....
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....prove the fact that the material was supplied in terms of Ex.P-4, the trial Judge rightly comes to the conclusion that the accused has rebutted the case of the complainant and complainant has failed to prove its case. Hence, the impugned judgment of acquittal does not require any interference by this Court. 7. Having heard the arguments of the learned counsel for the appellant, learned High Court Government Pleader appearing for the State and also on perusal of the grounds urged in the appeal and the material available on record, the points that arise for the consideration of this Court are: (i) Whether the trial Court has committed an error in acquitting the accused on coming to the conclusion that the complainant has not proved the case and whether it requires interference by this Court? (ii) What Order? Point No.(i): 8. Having heard the respective counsels and also the grounds urged in the appeal and also on perusal of the material on record, it is seen that the complainant in order to substantiate its claim, got examined two witnesses as PWs.1 and 2. This Court has to re-appreciate the evidence available on record. 9. PW-1 has filed an affidavit in....
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.... he does not know whether the same was produced or not. He also admits that when the cheque was collected from the accused, they have not obtained any signature on Ex.P-16. He also admits that for having supplied the goods in terms of Ex.P-4, they have not obtained the signature from the accused or from the employees of the accused. He also admits that they did not demand to pay the entire balance amount when they have collected the cheque at Ex.P-5. He also admits that before supplying the goods on credit basis, they used to collect the cheques from the accused. It is suggested that they used to fill up the blank cheques when the goods are supplied to the accused and the said suggestion was denied. It is suggested that Ex.P-16 Ledger extract was created for the purpose of this case and the same was denied. It is suggested that the goods mentioned in Ex.P-4 are not supplied to the accused and the same was denied. 11. Having perused the oral and documentary evidence available on record and on perusal of the cheque, which is marked at Ex.P-5, the amount is mentioned as Rs. 2,57,797/. The same reflects the total amount as mentioned in Ex.P-4. Hence, it is the case of the complainan....
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....hat no goods were supplied to him and there are admissions to that effect. When such being the case, when the accused has rebutted the evidence of the complainant in the cross-examination of PWs.1 and 2 eliciting answers from the mouth of PWs.1 and 2, again the burden shifts on the complainant to prove the fact that goods were supplied. When the accused had rebutted the evidence of the complainant, the complainant did not make any efforts to prove the fact that goods were supplied to the accused. The onus is on the complainant first to prima facie place the material before the Court for having supplied the goods and the same has not been proved. No doubt, the accused also did not enter the witness box, but, the fact remains that in the cross-examination of PWs.1 and 2, material answers are elicited regarding non-supply of the goods that there is no material for supply of goods and when such being the case, the accused has to make out his case only in preponderance of probabilities and the same has been done by the accused. 14. No doubt, the complainant's counsel vehemently contended that Ex.P-16 - Ledger account, is produced which shows the running account between the complai....