TaxTMI 
TaxTMI 
TaxTMI 
2022 (10) TMI 135
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....to undergo simple imprisonment for a period of six months and pay compensation of Rs.1,30,000/- to the respondent/complainant (hereinafter, complainant') in lieu of the cheque. 2. Precisely, the facts of the case, as emerge from the record, are that the complainant instituted complaint under S.138 of the Act stating therein that he is running business of sale and purchase of apple boxes in the name and style of M/s Joginder Fruit & Vegetable at Khegsu in partnership. He alleged that the accused, who had friendly relations with him, purchased 106 apple boxes from him on 5.10.2010 vide invoice No. 921 for Rs. 67,336/-. He further alleged that the accused also purchased 139 apple boxed vide invoice No. 925 for Rs. 24,974/- and as such in total accused had liability of Rs. 92,310/-, towards him. He alleged that the accused paid Rs.12,710 in cash and with a view to discharge his liability, accused issued cheque No. 252537 dated 14.10.2010 amounting to Rs.79,600/- drawn on his account maintained with Punjab National Bank, however, the fact remains that the cheque on its presentation was dishonoured on account of insufficient funds in the account of accused. 3. Since despite having rece....
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.... this court fins that both the learned courts below have dealt with each and every aspect of matter meticulously and as such, there is no scope of interference by this Court. 7. Interestingly, in the case at hand, there is no denial, if any, on the part of the accused so far as issuance of cheque and signatures thereupon are concerned, rather, while making statement under S. 313 CrPC, accused deposed that the aforesaid cheque was issued as a security but the aforesaid cheque has been misused by the complainant. Similarly, there is no denial to the fact that the accused purchased 106 apple boxes from complainant vide invoice No.921 for a sum of Rs.67,336/- and 139 apple boxes on 6.10.2010 vide invoice No. 925 for a sum of Rs. 24,974/-, but he has stated that the entire payment qua aforesaid lot was paid in cash to the complainant. However, the fact remains that the accused was unable to prove the factum of payment, if any, made by him in cash to the complainant. Since there is no dispute with regard to issuance of cheque as well as signatures thereupon, presumption available under Ss. 118 and 139 of the Act, became available to the complainant. As per aforesaid provisions of law, t....
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....f existence of any transaction with Shri Jagdishbhai? In this regard, significant it is to notice that apart from making certain suggestions in the cross-examination, the accused- appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp paper was given to Shri Jagdishbhai and another factor relied upon is that Shri Jagdishbhai had signed on the stamp paper in question and not the complainant. 19.1 We have examined the statement of Shri Jagdishbhai as also the said writing on stamp papers and are unable to find any substance in the suggestions made on behalf of the accused-appellant. 19.2 The said witness Shri Jagdishbhai, while pointing out his acquaintance and friendship with the appellant as also with the respondent, asserted in his examination-in-chief, inter alia, as under: "Accused when he comes to our shop where the complainant in the matter Shashimohan also be present that in both the complainant and accused being our friends, were made acquaintance with each other. The accused had necessity of mon....
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....es of dealings between the accused and the complainant having not been done in my presence therefore in my statement no clarification has been given. It is not true that the accused in my presence as mentioned in the complaint any cheque has not been given. It is not true that I in collusion with the complainant to usurp the false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that in support of the complaint of Shashimohan Goyanka is giving false statement." 19.4 The statement of Shri Jagdishbhai does not make out any case in favour of the accused-appellant. It is difficult to say that by merely putting the suggestion about the alleged dealing to Shri Jagdishbhai, the accused- appellant has been able to discharge his burden of bringing on record such material which could tilt the preponderance of probabilities in his favour. 19.5 The acknowledgement on the stamp paper as executed by the appellant on 21.03.2007 had been marked with different exhibit numbers in these 7 cases. In Complaint Case No. 46499 of 2008, the same is marked as Ex. 54 and reads as under : "Today the executor I Rohit Patel Ranchhodray Masala is a partner. Due to the ....
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....such a document so as to add to its authenticity; and, in the given status and relationship of the parties, Shri Jagdishbhai would have been the best witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily against the accused-appellant. 9. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. To raise probable defence, accused can rely on the materials submitted by the complainant. Needless to say, if the accused/drawer of the cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability, statutory presumption under Section 139 of the Negotiable Instruments Act, regarding commission of the offence comes into play. It would be profitable to reproduce relevant paras No.23 to 25 of the judgment herein:- "23. Further, a three....
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.... the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment despite sufficiency of funds and whether the same would be a sufficient ground to proceed in the matter, would be extremely heavy." 10. Complainant Jogender Singh with a view to prove his case examined himself as CW-1 and tendered evidence by way of affidavit Exhibit CW-1/A stating therein the entire case as set up in the complaint. He successfully proved on record Cheque No. 252537 dated 14.10.2010 amounting to Rs.79,600 Exhibit CW-1/B, dishonor memo dated 13.4.2011 issued by banker Ext. CW-1/C and demand notice ....
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.... of insufficient funds vide memo dated 13.4.2011 Ext. CW-1/C. He also stated that upon receipt of demand notice Ext. CW-1/E, he replied the same vide reply Ext. CW-1/G. In nutshell, accused has raised defence that the total sum of Rs. 92,310/- was paid in cash to the complainant, but, as has been observed hereinabove, aforesaid fact never came to be proved in accordance with law. 15. Accused, in his defence examined DW-1, Shyam Lal, Deputy Manger, DW-2, Sumeer Mehta, Manager, Punjab National Bank, Kumarsain and DW-3, Deepak Sharma, official from APMC, Kullu, 16. DW-1 Shyam Lal proved statement of account Ext. DW-1/A and stated about dishonour of cheque Ext. CW-1/B. DW-2 Sumeer Mehta deposed that the cheque was returned vide memo dated 13.4.2011, Ext. CW-1/D. DW-3 deposed that the firm M/s Joginder Fruits and Vegetables was nto registered with APMC and complainant is proprietor of M/s Mehta Trading Company according to their record. This witness further deposed that Joginder Fruit Company had not paid market fee to APMC Kullu on 5.10.2010 or 6.10.2010. He also stated that Mehta Fruits Company also did not submit any bill regarding purchase by accused on 5.10.2010 or 6.10.2010. He ....
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...."State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re- appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as Additional Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice." 20. Since after having carefully examined the evidence in the present case, this Court is unable to find any error of law as well as fact, if any, committed by the court....