TaxTMI 
TaxTMI 
2026 (2) TMI 1
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.... compensation with default sentence of one year and Rs. 5,000/- was ordered to be paid as defraying expenses of the State. 3. The order of the learned Trial Magistrate was challenged in Crl.A.No.36/2017 and learned Judge in the First Appellate Court by considered judgment dated 13.03.2020 dismissed the said appeal. 4. Facts in brief which are utmost necessary for disposal of the revision petition are as under: 4.1. Complainant filed a private complaint under Section 200 Code of Criminal Procedure (hereinafter 'Cr.P.C.' for short) alleging the commission of offence under Section 138 of the Negotiable Instruments Act by contending that complainant is a registered manufacturer, dealer and supplier of all types of tractor and trailers, agricultural implements, rolling shutters, fabrication and general engineering works in the name and style of 'Krashi Laxmi Agro Industries' situated at Tarihal Industrial Area, Hubballi. 4.2. Accused approached the complainant for the purpose of development of her agricultural activities and placed order for two trailers and four wheeler bearing chassis Nos.KLAI-0053 and KLAI-0054 with the complainant in a sum of Rs. 3,85,000/-. The invoice ....
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....ccount and raised statutory presumption under Section 139 of the Negotiable Instruments Act and convicted the accused and passed the sentence as referred to supra. 9. Being aggrieved by the same, accused filed an appeal before the First Appellate Court in Crl.A.No.36/2017. 10. Learned Judge in the First Appellate Court after securing the records, heard the arguments of the parties in detail. 11. During the course of hearing of the appeal, additional evidence was sought to be placed on record by the accused by filing an application under Section 391 of Cr.P.C. 12. Learned Judge in the First Appellate Court noted that the material evidence placed on record was sufficient enough to reappreicate the case of the appellant and did not deem it necessary to consider the additional evidence and therefore, dismissed the application seeking additional evidence and consequently, dismissed the appeal. 13. Being further aggrieved by the same, accused is before this Court, in this revision petition on following grounds: • "The Petitioner has not filed any other petition or revision before any other Court, Forum or Authority. • The Petitioner did not have a....
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....ring Chassis No. KLAI-0053 and KLAI-0054 to Mr.Siddappa Yallappa B. Patil and not the present Petitioner/Accused and further disclosing that, both the said Trailers having been registered and given vehicle No. KA-48 T-6231 and KA-48 T-6232. The present Petitioner vide Memo dated09.01.2020 placed before the Learned Single Judge the actual status of the Trailers bearing chassis No. KLAI-0053 and KLAI-0054 sold by the complainant. These documents would clearly establish the fact that, the documents as Exhibit P-10 and P11 produced by the Respondent/Complainant as delivery challans are created and concocted. • The Learned Sessions Judge committed a grave error in relying upon the documents of Tax Invoice marked as Exhibit P-10 and document of Delivery Challan marked at Exhibit P11. These 2 (two) documents does not confirm to the requirement of the issuance of Sales Certificate in Form 41 under Rule 47(1) of the Motor Vehicle Rules. If really these Trailers were sold by the Respondent/Complainant to the Petitioner/Accused, there would have been certainly documents registered with the registering authority on the confirmation of sale by the Respondent/Complaint. Therefore, t....
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....erit without deciding the interim application filed by the Petitioner under Section 391 of Cr.P.C. • The Learned Sessions Judge as well as Magistrate have failed to note that, there is no outstanding legally returnable debt as against the present Petitioner from the Respondent/Complainant. Therefore, the question of issuance of cheque in lieu of discharge of debit outstanding does not arise. • The Learned Sessions Judge as well as Magistrate have failed to consider the settled position of Law declared by the Hon'ble Supreme Court of India. There was no fair trial and providing an opportunity was not given to the Petitioner/Accused to raise her defence and prove innocence. Adducing evidence in support of the defence is a valuable right. Denial of such right will lead denial to a fair trial. • The Learned Sessions Judge has miserably failed to note that, the Trial Court has not provided any opportunity to the present Petitioner/Accused to lead her defence evidence, on the contra the Trial Court though was trying Warrant Trial Case, as on the conclusion of the Respondent/Complainant witness, has posted the matter for settlement under Section ....
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....n stood proved and the additional defence that was sought to be placed on record was an afterthought and post transaction documents and therefore, had no bearing whatsoever on the disputed question in the lis and thus, rejection thereof is just and proper and sought for dismissing the revision petition. 21. In reply, learned counsel for the revision petitioner places reliance on the following judgments: i. In the case of Brigadier Sukhjeet Singh (Retired) MVC v. State of Uttar Pradesh and Others reported in (2019) 16 SCC 712 wherein in paragraph Nos.23 to 26 is held as under: "23. The key words in Section 391(1) are "if it thinks additional evidence to be necessary". The word "necessary" used in Section 391(1) is to mean necessary for deciding the appeal. The appeal has been filed by the accused, who have been convicted. The powers of the appellate court are contained in Section 386. In an appeal from a conviction, an appellate court can exercise power under Section 386(b), which is to the following effect: "386. (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-....
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.... the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise." 25. This Court again in Rambhau v. State of Maharashtra [Rambhau v. State of Maharashtra, (2001) 4 SCC 759 : 2001 SCC (Cri) 812] had noted the power under Section 391 CrPC of the appellate court. Following was stated in paras 1 and 2: (SCC p. 761) "1. There is available a very wide discretion in the matter of obtaining additional evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same... 2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to chan....
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....., 1997 Cri LJ 1942 (AP)], the Single Judge of the Andhra Pradesh High Court while considering the Explanation to Section 138 held: "... Explanation to Section 138 of the Negotiable Instruments Act clearly makes it clear that the cheque shall be relatable to an enforceable liability or debt, and as on the date of the issuing of the cheque there was no existing liability in the sense that the title in the property had not passed on to the accused since the goods were not delivered. ..." 11. The Gujarat High Court in Shanku Concretes [Shanku Concretes (P) Ltd. v. State of Gujarat, 2000 Cri LJ 1988 (Guj)] dealing with Section 138 of the NI Act held that to attract Section 138 of the NI Act, there must be subsisting liability or debt on the date when the cheque was delivered. The very fact that the payment was agreed to some future date and there was no debt or liability on the date of delivery of the cheques would take the case out of the purview of Section 138 of the NI Act. While holding so, the Gujarat High Court followed a decision of the Madras High Court in Balaji Seafoods [Balaji Seafoods Exports (India) Ltd. v. Mac Industries Ltd., (1999) 1 CTC 6 (Mad)]. ....
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....to take the goods either manufactured for him or procured for him. Payment of cost of the goods in advance being one of the conditions of the contract becomes liability of the purchaser. The purchaser who had issued the cheque could have been asked to make payment either by draft or in cash. Since giving cheque is a mode of payment like any other mode of payment, it is normally accepted as a payment. The issuance of a cheque at the time of signing such contract has to be considered against a liability as the amount written in the cheque is payable by the person on the date mentioned in the cheque. Where the seller or manufacturer, on the basis of cheques issued, manufactures the goods or procures the goods from outside, and has acted upon the contract, the liability of the purchaser gets fastened, the moment the seller or manufacturer acts upon the contract and procures the goods. If for any reason, the seller fails to manufacture the goods or procure the goods it is only under those circumstances that no liability is created. However, where the goods or raw material have been procured for the purchaser by seller or goods have been manufactured by the seller, it cannot be said that....
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....to its logical conclusion either because of its cancellation or otherwise and material or goods for which purchase order was placed is not supplied by the supplier, in our considered view, the cheque cannot be said to have been drawn for an existing debt or liability." iii. In the case of Sri. Veeramaheswara Credit Co-Operative Society Ltd. v. Sri. C.H. Veerabhadrappa reported in 2013 SCC OnLine KAR 349, in paragraph Nos. 8 and 9, it has been held as under: "8. As there are two different cheques in both the criminal cases and the signature on the cheque - Ex. P2 is not in dispute, a presumption arises under S. 139 of NI Act to the effect that the cheque was issued towards repayment of dues. Anyhow, to rebut the said presumption though the respondent has placed reliance on the document Ex. D1. Subsequent to filing of this appeal the appellant has produced the documents i.e., copy of loan application/sanction order, copy of loan agreement, copy of promissory note and the copy of revenue receipt. Perusal of these documents would reveal that the respondent has raised loan of Rs. 20,000 but anyhow, these documents will have to be proved by the appellant in accordance w....
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....s a request to represent the same and as such, cheque was again represented on 08.05.2008. Again the cheque was dishonoured for 'want of funds' and there was no reply to the legal notice. Non reply to the callings of the legal notice exposes the hollowness in the claim of the accused. 28. Complainant having examined and placed on record necessary oral and documentary evidence, also examined his banker as C.W.2, discharged the initial burden to raise the statutory presumption under Section 139 of the Negotiable Instruments Act. 29. No doubt, such a presumption is a rebuttable presumption. 30. In order to rebut the presumption, it was the accused who was required to place such material evidence on record or atleast establish from the effective cross-examination of C.Ws.1 and 2. As discussed supra, except suggesting that signature of the accused is not found in Ex.P.2, no other material is forthcoming. 31. On the contrary, complainant has produced before the Court, the invoice, GST certificate and necessary tax paid receipts in respect of the sale of trailers to the accused. 32. Therefore, following the dictum of the Hon'ble Apex Court in the case of Rajesh Jain v. Ajay....
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....elivered is not established. 43. In other words, who obtained the delivery of the trailers at the first instance and thereafter, to whom it is transferred, is not forthcoming from the records of the Regional Transport Office. 44. However, cross-examination to P.W.1 would only make it clear that temporary registration and insurance policy was not taken by the complainant in order to deliver the same to the accused. 45. P.W.1 has clearly denied the suggestion in cross-examination and answered that it is not the responsibility of the manufacturer either to obtain temporary registration or to obtain the policy. 46. On the contrary, there is positive evidence on record by P.W.1 answering that it is the accused who took delivery of two trailers which were manufactured with the chassis number by the complainant. 47. In other words, when there is a delivery taken by accused, legally recoverable debt under the invoice has been established by the complainant by placing necessary oral and documentary evidence on record. 48. Therefore, taking note of all these aspects of the matter and especially in the absence of any reply notice and any contra evidence placed on record, thi....
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....the principles of law enunciated in the case of Sri. Veeramaheswara Credit Co-Operative Society Ltd. referred to supra is not necessary. 58. Moreover, when no evidence is placed on record in the trial, additional evidence would not be permitted to be placed on record as a rule. 59. View of this Court, in this regard, is supported by the principles of law enunciated by the Hon'ble Apex Court in the case of Ajitsinh Chehuji Rathod v. State of Gujarat, reported in (2024) 4 SCC 453. 60. Relevant paragraph of the said judgment, is culled out hereunder: "8. At the outset, we may note that the law is well-settled by a catena of judgments rendered by this Court that power to record additional evidence under Section 391CrPC should only be exercised when the party making such request was prevented from presenting the evidence in the trial despite due diligence being exercised or that the facts giving rise to such prayer came to light at a later stage during pendency of the appeal and that non-recording of such evidence may lead to failure of justice." 61. Applying the above principle, this Court is of the considered opinion that the accused has not made out any ground mu....