TaxTMI 
TaxTMI 
2026 (5) TMI 193
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....Respondent Nos. 1 and 2 guilty of offence punishable under Section 138 of the N.I. Act and sentenced them to simple imprisonment of six months with a direction to pay compensation of Rs. 38,00,000/- to the Appellant and in default to undergo simple imprisonment of one year. 3. Aggrieved by the aforesaid order, the Respondent Nos. 1 and 2 approached the Sessions Judge, North Goa, Panaji vide Criminal Appeal No. 129/2014. Vide order dated 30.09.2015 (impugned order), the learned Sessions Judge, North Goa, Panaji allowed the Appeal of the Respondent Nos. 1 and 2 and set aside the judgment of conviction passed by the learned JMFC, Panaji and proceeded to acquit the Respondents herein. 4. Aggrieved by the aforesaid order of acquittal, the Appellant has approached this Court by way of the present Appeal. Vide order dated 01.08.2017, this Court granted the Appellant leave to appeal. 5. Heard Mr Ajit Kantak for the Appellant and Mr D. Vernekar for Respondent Nos. 1 and 2. Perused the record. 6. On behalf of the Appellant, the impugned order was assafiled on several grounds. Firstly, it was sought to be argued that the main criteria on which the acquittal was based is that the c....
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....hat the learned Sessions Judge has erred in holding that the Respondent Nos. 1 and 2 had rebutted the presumption under Sections 118 and 139 of the N.I. Act when in fact, Respondents have neither assafiled the presumption during the cross-examination nor stepped into the witness box to rebut these statutory presumptions. Fifthly, it was contended that the learned Sessions Judge fafiled to appreciate that the iron ore sold and supplied by the Respondents was of inferior quality and also not of the same quantity as contemplated in the contract. Hence, it was of no use to the Appellant. Mere supply of the iron ore by the Respondents to the Appellant without adhering to the quality, quantity and timeline was a breach of the terms of the contract and hence, the Appellant was justified to deposit the cheque which was given as a guarantee in lieu of the amount of Rs. 35,00,000/- appropriated by the Respondents by encashing the demand draft. This fact was disregarded by the learned Sessions Judge in the impugned order. 9. Per contra, learned Advocate for the Respondents countered the aforesaid submissions in seriatiam. Responding to the first submission, it was fairly admitted by the Re....
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....ant. The Appellant in the present Appeal had prosecuted the Respondent Nos. 1 and 2 along with some other persons including one Pandurang alias Bhai Naik by way of a private complaint before the JMFC, Margao, Goa. In the said complaint, the Appellant had made several allegations. It was alleged that the Respondent No. 2, proprietary concern along with the Respondent No. 1 and other persons who were connected with the Respondent No. 2 colluded with Pandurang alias Bhai Naik. It was alleged that the said Pandurang alias Bhai Naik handed over to the Appellant the cheque (the subject cheque in the present Appeal). It was against this cheque that the Appellant allegedly handed over to Pandurang alias Bhai Naik the demand draft (which also forms part of the present Appeal). The aforesaid complaint was ffiled on 01.08.2005 which was later in point of time than the complaint under Section 138 of the N.I. Act which was ffiled on 09.07.2004. There are several discrepancies between the stand taken by the Appellant in the Section 138 complaint and the cheating complaint. In the Section 138 complaint, the Appellant has taken a stand that the cheque and the demand draft were issued to the Appell....
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.... Respondents. The grievance of the Appellant is not that the iron ore was not supplied but that the quality of the supplied iron ore was less than the quality prescribed by the contract. Even assuming that there was a dispute between the Appellant and the Respondents on the quantity of the iron ore, the fact remains that the Appellant acknowledge that the 1393.10 MT of iron ore has been supplied to them and thus, it becomes a disputable question of fact as to what was the amount owed by the Respondents to the Appellant. It was submitted that this dispute was mandated to be resolved by way of an arbitration between the parties as reflected in the terms of the contract. However, using the false claim of inferior goods supplied, the Appellant misused the cheque which was in their illegal possession and deposited the same. Hence, the learned Sessions Judge was right in acquitting the Respondents. 13. Before appreciating the merits, it must be emphasised that the scope and parameters of examining an appeal against acquittal are set out by the Hon'ble Apex Court in various judgments, some of which are C. Antony v/s. Raghavan Nair - (2003) 1 SCC 1, K. Prakashan v/s. P. K. Surendran - (....
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....pellant has admitted that the quantity of the iron ore was 1393.105 MTs and the average quality was 59.10% Fe. Therefore it cannot be said that as on the date of presentation of the cheque, there was any debt or liability on the part of the Respondents to pay Rs. 35,00,000/- to the Appellant. Differences or disputes arising from the performance of the contract is clearly the subject matter of arbitration as set out in clause 12 of the said contract. Unless the price of the goods supplied is crystallised, it cannot be said that the liability against the cheque was ascertained or admitted. 15. The learned Sessions Judge in the impugned order further observes that it is trite law that once the accused demonstrates by way of preponderance of probability that there is enough material to rebut the statutory presumptions, the onus then shifts on the complainant to prove that the cheque in question was issued against enforceable liability. In the facts of the present case, the learned Sessions Judge notes that the onus on the Appellant has not been discharged. The learned Sessions Judge has also dealt with the case of the Appellant that iron ore of inferior quality was supplied by the R....