TaxTMI 
TaxTMI 
2022 (2) TMI 402
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.... 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 India, Treasury Branch, Solapur. The cheque was returned unpaid due to insufficiency of funds in the account of accused. On 10th April 2003 notice was issued to the accused by complainant demanding amount of cheque. Since there was a failure by accused to make the payment within stipulated time, complaint was filed under Section 138 of N.I.Act. 4. Learned Magistrate issued process against accused for the offence under Section 138 of N.I.Act. The summons was received by accused. Plea of the accused was recorded. The accused pleaded not guilty. 5. Vide judgment and order dated 18th May 2006 the Trial Court acquitted the respondent of the offence under Section 138 of N.I.Act. 6. The learned APP appearing for the appellant-State submitted that the Trial Court has committed an error in acquitting the accused. The offence was proved. The li....
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....as filed before the Court of Magistrate for the offence u/s.138 of N.I.Act. Cheque dated 10th March 2003 was submitted to the bank on 21st March 2003. The manager replied about the dishonour of cheque on 25th March 2003 and the complainant issued notice on 10th April 2003 within 15 days. The accused did not make payment. Hence complaint was filed on 5th May 2003. In the cross-examination PW-1 stated that there was agreement between milk dairy and accused. The said agreement is in their custody. The copy of 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. Docum....
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....wards dues was signed by him. It was sent to the accused by registered post acknowledgment due. It was received by the accused. In the said letter accused was informed that dues towards milk shall be paid by him by 25th February 2003. The letter dated 28th February 2003 was sent to the accused by registered post acknowledgment due. It is received by the accused. In the cross-examination he stated that he was working as clerk in the government milk dairy. He is looking after the work relating to milk supply. He has no personal knowledge about the details of the accounts of agents. There is overwriting in respect of dates on Exhibit-47. In Exhibit-46 after the cheque number, the amount is not mentioned. The receipt is not given on which date he has received the cheque from accused. He cannot tell the exact date on which he has received the cheque from the accused. The receipt is required to be given after receiving payment. The cheques were not in his custody when he issued letter Exhibit-47. As per order of his superior he gave letter and he has no personal knowledge about the same. Three cheques are mentioned in Exhibit-47. Out of three cheques mentioned in Exhibit-47, one chequ....
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.... that cheque was dishonoured since cheque return memo is not filed. The complainant 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. Kalpak Bhaskar Gadhave (supra), the respondent herein was prosecuted in another case for the offence under Section 138 of N.I.Act in respect to another cheque by same complainant. It was alleged that accused was collecting milk from complainant and amount of Rs. 2,89,096/- was due from accused towards supply of milk. The case had resulted in acquittal. The appeal agai....