TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 402
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....of Negotiable Instruments Act, 1881 (`N.I.Act' for short). Learned Magistrate acquitted the respondent. The appellant is aggrieved by the judgment of acquittal. 3. The case of the complainant is as follows : The complainant is in the business of supplying milk to the customers through its agents. The accused is agent of complainant i.e. Government Milk Dairy and he was collecting milk from the said dairy for the purposes of selling it. There were dues of Rs. 1,00,000/- from the accused. He was informed about the dues by the dairy manager. The accused gave cheque bearing No.118039 dated 10th March 2003 for Rs. 1,00,000/- drawn on Janata Sahakari Bank Limited, Solapur. The complainant deposited the cheque for clearance with State Bank of In....
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....established all the required ingredients to constitute offence under Section 138 of N.I.Act. 7. Learned counsel for respondent Mr.S.A.Kumbhakoni submitted that basic requirement to establish commission of offence u/s.138 of N.I.Act was not established. The demand notice was not proved. There is no reason to set aside the order of acquittal. 8. He relied upon decision of this Court in case of State of Maharashtra Vs. Kalpak Bhaskar Gadhave 2009-ALL M.R. (Cri.)-714 and Vandana Akhilesh Pandey Vs. Abhilasha Anil Pande 2018(4)-Bom.C.R. (Cri.)-774. 9. I have perused the impugned judgment of Trial Court, the oral and documentary evidence. On scrutiny of evidence and the reasons assigned by the Trial Court, I do not find any reason to disturb t....
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....f agreement is not filed in the proceedings. The complainant had stopped supply of milk to the accused since March-2003 with prior intimation to the accused. The intimation is not filed on record. Suresh Dabhade is the employee of milk dairy. The accused was informed that he has to pay the outstanding amount. The record is not filed in the present proceedings. The total outstanding amount due from the accused is not mentioned in the notice. The statement of account of the accused is not filed. The record of outstanding amount is not filed in the proceedings. In the notice as well as in the complaint, the reason for terminating the agency of the accused is not mentioned. Documentary proof is not filed to prove that the amount was demanded f....
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....larly. The bond was signed by accused in his presence. He is the signatory to the bond. In the cross-examination he stated that he has worked as Supervisor in the Milk Dairy for Taluka Barshi. The correspondence is required to be given with inward number. On the letter Exhibit-45 there is no inward number. It is not mentioned in the affidavit where and on which date the accused gave letter Exhibit-45. It is mentioned in his affidavit that he has signed letter Exhibit-45 as a witness. Mr.M.M.Gaikwad was serving in milk daily. 13. PW-3 Pratap Patil in his affidavit-of-evidence stated that he is working as clerk in Government Milk Scheme. The accused issued cheque bearing No.118038, dated 5th March 2003 and cheque bearing No.118039, dated 10t....
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....used also paid Rs. 1,30,000/- in March-2003. Cases were filed against accused for amount of Rs. 3,89,096/-. 14. On scrutiny of evidence it is evident that the complainant has not established that the cheque was issued in discharge of legally enforceable debt. The cross-examination of witnesses show that from time to time the accused had deposited the amount. It is not proved beyond doubt that the applicant had liability of Rs. 1,00,000/- towards complainant. There is overwriting in respect of dates in Exhibit-47. In Exhibit-46 after the cheque number, amount is not mentioned. There were discrepancies in the letter issued by the complainant and the evidence of witnesses about the liability of accused which creates doubt. The memorandum rega....
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....ainant failed to prove that notice was issued to the accused. Thus, the requirements to convict the accused for the offence u/s.138 of N.I.Act were not established. In the circumstances, there is no reason to set aside the order of acquittal. 16. In the case of Vandana Akhilesh Pandey Vs. Abhilasha Anil Pande (supra), it was held that cognizance of offence could not have been taken by Court because basic fact of dishonour of cheque is not proved by the complainant. There was failure to prove the dishonour of cheque by any mode other than provided u/s.146 of the Act. The memo of return of cheque do not appear official memo of bank due to which presumption in favour of complainant did not arise. 17. In the case of State of Maharashtra Vs. K....