IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1130 OF 2008 CRIMINAL APPLICATION NO. 1130 OF 2008 CRIMINAL APPLICATION NO. 1130 OF 2008 BASF India Ltd. ...Applicant (Orig.Complainant) vs. M/s.Mega Packs & Ors. ...Respondents ALONGWITH CRIMINAL APPLICATION NO. 1131 OF 2008 CRIMINAL APPLICATION NO. 1131 OF 2008 CRIMINAL APPLICATION NO. 1131 OF 2008 BASF India Ltd. ...Applicant (Orig.Complainant) vs. M/s.Mega Packs & Ors. ...Respondents Appearance in both the matters :- Appearance in both the matters :- Appearance in both the matters :- Mr.S.V. Marwadi for the Applicant. Mr.P.L. Bhujbal for Respondent Nos.1 and 2. Mr.Rajesh More, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : NOVEMBER 12, 2008 DATED : NOVEMBER 12, 2008 DATED : NOVEMBER 12, 2008 P.C. :- P.C. :- P.C. :- 1. Heard the learned Counsel for both the parties. By consent of parties, both the applications are heard finally at the admission stage. - 2 - 2. The applicant is the original complainant and the respondent is the original accused. The respondent accused has filed a complete compilation of the notes of evidence as also the documentary evidence which was produced in the trial court. The applicant is a company incorporated under the Companies Act and is a manufacturer of various types of machines. It is the case of the complainant that they had supplied these machines to the respondent accused. Before supplying these machines, they had entered into an agreement with the respondent and the payment of money was secured through the ICICI bank and a tripartite agreement was executed with the ICICI Bank. The complainant’s case is that towards the machinery which was sold and supplied to the respondent, the respondent had issued two cheques for an amount of Rs.8 lakhs and Rs.2 lakhs. It is their case that when these cheques were deposited, they were dishonoured and therefore, a statutory notice was given by the complainant to the respondent accused. The respondent in their reply had taken a stand that these two cheques which were drawn on a Co-operative Bank and were undated and blank but signed by the respondent were - 3 - given as a security to the ICICI Bank towards the Overdraft facility. Thereafter, two complaints were filed for dishonour of the two cheques. The trial court came to the conclusion that the respondents had established that these two cheques were given as a security to the ICICI bank for the Overdraft facility which was given by the ICICI Bank and further held, on the basis of the other evidence which was brought on record, that these cheques were not issued towards a legally enforceable liability. 3. Shri Marwadi, learned Counsel appearing on behalf of the applicant submitted that after the cheques were dishonoured, the respondent had written various letters to the ICICI Bank for the purpose of getting the record that the said cheques were given as security towards Overdraft facility given by the ICICI Bank. It is further submitted that the cheques were not undated and were issued in the name of the complainant and were admittedly signed by the respondent. He submitted that the said machines were delivered in the year 2003 and that all the invoices were also issued in the year 2003, - 4 - therefore, the trial court had erred in holding that the two cheques were given as security for the Overdraft facility. 4. Shri Bhujbal, learned Counsel appearing on behalf of the respondent, on the other hand, invited my attention to the evidence of the complainant wherein it was clearly admitted by the complainant that the delivery of the machine was in the year 2002. He further submitted that all the invoices pertain to the year 2003 and 2004. He further invited my attention to the letter written by the complainant wherein he had admitted that though the cheques were given as security. they were entitled to adjust the said cheques towards other liability. He further invited my attention to the correspondence between the respondent and the ICICI Bank wherein the respondent had clearly asked the bank to give no due certificate since there was no outstanding amount due and payable to the ICICI Bank. He also invited my attention to the evidence of the officer of the Co-operative Bank. He submitted that therefore, the trial court has correctly held that the presumption - 5 - raised under Section 139 of the Negotiable Instruments Act had been rebutted by the respondent and the court had correctly held that the cheques were given as security towards overdraft facility. 5. I have gone through the notes of evidence and also the documentary evidence which was brought on record. In my view, there is no infirmity or illegality in the order passed by the trial court. The respondent has, in my view, established beyond any doubt that the said cheques were given as security for the purpose of Overdraft facility. From the evidence of PW 1, it can be seen that the machinery was supplied to the respondent in the year 2002. In the cross-examination, this witness has admitted that there was no amount due and payable for the year 2002. All the invoices are for the year 2003 and 2004. The tripartite agreement between the complainant, respondent and the ICICI Bank clearly shows that under the terms and conditions of the said agreement, the respondent was under an obligation to give security to ICICI Bank. The cheques and the counterfoils of the said two cheques which have been - 6 - brought on record also clearly indicate that two cheques were given as security for the overdraft facilities. In the rejoinder given by the complainant to the reply given by the respondent to the statutory notice, they have admitted Clause 5 which reads as under :- "5. As a supplier of Styropor, my client has every right to adjust any amount from any security provided by your client in partial satisfaction of its outstandings. Therefore, our clients vehemently deny the allegations made by you as the same are meaningless, baseless and bad at law." 6. From the aforesaid admission, it is clear that the complainant was very much aware that the said two cheques were given as security towards the Overdraft facilities given to ICICI Bank and yet they had used these cheques for adjusting some other liability. There is correspondence between ICICI Bank and the respondent which clearly indicates that the ICICI Bank had given the no due certificate to the respondent and the - 7 - overdraft account was closed indicating therein that the amount which was due and payable to the complainant had already been paid by the respondent. The trial court has considered all the aspects and has recorded the finding in favour of the respondent. The view taken by the trial court is a plausible view. No case, therefore, is made out for interfering with the view taken by the trial court. 7. Leave, therefore, is refused. Appeal is dismissed. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)