In the present case, considering the fact that PW 1 had
been repeatedly showing his willingness to produce the documents but
factually avoided to produce the documents was clearly indicative of
the fact that the goods as alleged, were never supplied during the
period between 7.5.2010 and 8.3.2011. The view,therefore, taken by
the learned trial Court, appears to be one of the probable views and
does no call for any interference. The learned trial Court has rightly
held that the standard of proof required for rebutting the presumption
shall not be as strong as a standard of poof required for proving the
prosecution case.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
CRIMINAL APPEAL NO. 247 /2013
M/.sAditya Air Products Private Ltd.
v e r s u s
M/s Saarth Engineering and
Construction Pvt. Ltd.
CORAM: M.L.TAHALIYANI, J.
DATE OF PORNOUCEMENT: 15.01.2014
Citation; 2014 ALL MR(cri)1801
1.
This is an Appeal against the judgment and order of
acquittal passed by the learned Judicial Magistrate, First Class, Nagpur
in Summary Criminal Case No.20795/2011.
2.
The respondent Nos. 1 to 4 were prosecuted by the
appellant for the offence punishable under Section 138 of the
Negotiable Instruments Act on the ground that three cheques totally
amounting to Rs. 7 lakhs, issued by the respondent no.3 on behalf of
the respondent no.2 were dishonoured for want of sufficient funds. At
this stage, it may be mentioned here that the respondent no.2 was
earlier a Private Limited Company and was later on converted into a
Public Limited Company. The respondent no.3Vivek was the
Chairman of respondent no.2 and respondent no.4 was the Vice
President of respondent no.2.
3.
The appellantM/s Aditya Air Products Private Limited
were manufacturing industrial and medical gases in their factories at
Nagpur and Chandrapur. The respondent no.2 ( earlier respondent
no.1 ) had placed order through the respondent nos. 3 and 4 for
LPG cylinders, CO2 gas cylinders and oxygen gas cylinders for being
delivered at the sites of respondents at Amravati, Bela, and
Chandrapur. It was alleged by the appellant that the material was
supplied as per the order issued and thee cheques worth Rs. 7 lakhs
were issued in part consideration of the material supplied by the
appellant. The total liability of the respondents was Rs. 9,68,902/.
It was the case of the appellant before the trial Court that an amount
of Rs. 2 lakh was already deposited and, therefore, there was due of
Rs. 7,68,902/.. The respondents had allegedly issued three cheques
to pay the due amount. The first two cheques of Rs. 1 lakh each, were
dated 12.1.2011 and the third cheque of Rs. 5 lakhs was dated
4.
May 2010 and 8th March 2011.
12.4.2011. The goods were supplied during the period between 7th
Since the cheques were dishonoured due to insufficiency
of funds, the appellant had issued statutory notice after dishonour of
cheques and after waiting for statutory period. They had lodged a
common complaint in respect of all the three cheques, which has been
decided by the learned Judicial Magistrate, First Class and the order of
acquittal has been passed.
5.
The defence of the respondent s before the trial Court was
that the cheques were issued by way of security deposit and that there
was no legally enforceable liability due to the appellant. It was the
case of respondents that though the appellant claimed to have
supplied material as per the order, the original order forms, delivery
challans and other documents demonstrating sale of goods and
delivery of the same to the respondents were not produced before the
trial Court. The trial Court took note of the fact that though PW 1
has stated in his examinationinchief that he had got all the original
documents and he could produce the same as and when required, he
failed to do the same inspite of the fact that this issue was raised by the
respondents in crossexamination of PW 1. The learned trial Court
after having gone through the evidence particularly crossexamination
of PW 1, had come to the conclusion that the respondents have been
able to rebut the presumption which could be raised in faovur of the
appellant. The learned trial Magistrate in his judgment has stated that
the crossexamination of PW 1 indicates that he had no documents to
support the claim of appellant that the goods were supplied to the
respondents.
6.
I have gone through the crossexamination of PW 1.
Though PW 1 had shown his willingness to produce the original
documents, he avoided to produce the same despite the fact that he was
thoroughly crossexamined in respect of documents – Exhs 38, 39
and 40. He has admitted in his crossexamination that he had not
filed delivery memo and invoice memo either with the complaint or
with the affidavit of evidence in respect of the goods supplied by the
appellant during the period between 7.5.2010 and 8.3.2011. He
stated in his examinationinchief that record could not be produced
because it was bulky. He had repeated the same thing in the cross
examination. In fact, he should have realised that it was hightime for
him to produce delivery challans and invoice memos. The claim of PW
1 that the record was bulky and, therefore, could not be produced,
ig
does not appear to be correct. He denied the suggestion that the dates of
three disputed cheques were recorded by the staff members of the
appellant. This suggestion on behalf of the respondents to PW 1 was
not a bald suggestion, inasmuch as there is no explanation as to why
the two cheques dated January, 2011 were deposited in the Bank in
the month of June,2011. In the ordinary course, no businessman
will retain cheques with him for six months unnecessarily. If the two
cheques worth Rs. 2 lakhs were not deposited in the bank by the
appellant, PW 1 owed an explanation for the same to the Court.
7.
The learned Magistrate had taken the view that the
respondents/accused had been able to rebut the presumption under
Section 139 of the Negotiable Instruments Act by probabilising their
case.
8.
Learned counsel Mr R.P
.Joshi appearing on behalf of the
appellant, has relied upon the judgments of this Court reported at
2013 All MR (Cri) 1204; { VPK Urban Coop. Credit Society Ltd.
vs. Mrs. Nandini Waingade and another } and judgment of the
Hon’ble Supreme Court reported at (2010) 11 SCC 441;
{ Rangappa vs. Shri Mohan}. This gist of the cases cited by Mr.
R.P
.Joshi, learned counsel, is that the presumption under Section 139 is
a rebuttable presumption and as to whether the same has been
rebuttable or not, is to be considered by the Court on the facts and
circumstances of the case in hand. The Hon’ble Supreme Court in
another judgment reported at (2007) 5 SCC 264 : { Kamala S. vs.
Vidhyadharan M J and another} has stated at paragraph no. 15 as
under :
“15. The Act contains provisions raising
presumption as regards the negotiable instruments
under Section 118(a) of the Act as also under
Section 139 thereof. The said presumptions are
rebuttable ones. Whether presumption stood
rebutted or not would not depend upon the facts
and circumstances of each case.”
9.
In the present case, considering the fact that PW 1 had
been repeatedly showing his willingness to produce the documents but
factually avoided to produce the documents was clearly indicative of
the fact that the goods as alleged, were never supplied during the
period between 7.5.2010 and 8.3.2011. The view,therefore, taken by
the learned trial Court, appears to be one of the probable views and
does no call for any interference. The learned trial Court has rightly
held that the standard of proof required for rebutting the presumption
shall not be as strong as a standard of poof required for proving the
prosecution case.
10.
I do not find any merit in the Appeal. The Appeal stands
dismissed.
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