1 crap5092.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 5092 OF 2010 Sydler Remedies Pvt. Ltd ...Applicant (Original Complainant) VERSUS Wizard Biotech Pvt. Ltd. & anr. ...Respondents (Original Accused) ..... Shri U.S.Malte, advocate for applicant Shri A.A.Mukhedkar, A.P.P. for respondents ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 24 th June, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant (original complainant) seeking leave to file appeal, challenging the judgment and order of acquittal, dated 2 crap5092.10 29.9.2010, passed by the learned Judicial Magistrate, First Class, Court No. 5, Aurangabad, in S.C.C. No. 3707 of 2008, thereby acquitting the respondents (original accused nos. 1 and 2) for the offence punishable under Section 138 of the Negotiable Instruments Act. 3 I have perused the impugned judgment and order, dated 29.9.2010 and the R. and P. with the assistance of the learned counsel for the parties. 4 The parties herein after are referred as per their original status i.e., ‘the complainant’ and ‘the accused’. 5 Briefly stated, the complainant’s case is that the complainant is a Private Limited Company, registered under the Companies Act, 1956 and carrying on the business of Pharmaceuticals at Waluj, Aurangabad and the present application has been filed by the Director of the applicant, namely Nishikant Rajkumar Jain as per resolution passed by the complainant company on 10.5.2008. Accused no.1 is also a Private Limited Company, registered under the Companies Act, 1956 and is carrying on the business of Pharmaceuticals; whereas accused no.2 is the Director 3 crap5092.10 of accused no.1 company at the relevant time and looks after the affairs of the said company. It is alleged that accused no.1 gave purchase order on 1.3.2007 to the complainant company, and accordingly, the complainant supplied the said Pharmaceuticals goods to the accused and as per the instructions of accused no.1 the bills were issued in the name of Raw Biotech Company at Jaipur and Mumbai. 6 It is also alleged that accused no.2 issued a cheque on behalf of accused no.1 towards payment of the said goods i.e. bearing No. 147106, dated 16.11.2007 drawn on H.D.F.C. Bank, Branch Boriwali (West), Mumbai for Rs.4,35,091/- The complainant presented the said cheque for encashment purpose, but same was dishonoured and returned unpaid with the Bank return memo on 24.3.2008 with the endorsement “payment stopped by drawer”. Hence, the complainant issued payment notice on 28.3.2008 by R.P.A.D. to accused nos. 1 and 2, but the said R.P.A.D. notice was returned unserved on 2.4.2008; whereas U.P.C. notice was not returned. Accordingly, the complainant contends that in spite of receipt of said notice, the accused has not made payment of said cheque amount; whereas accused no.2 on behalf of accused no.1 gave false reply on 21.4.2008. The complainant, therefore, filed complaint against the accused under Section 138 of the Negotiable 4 crap5092.10 Instruments Act. 7 The accused appeared therein and their plea was recorded, their defence was of total denial and they pleaded not guilty and claimed to be tried. The accused have neither examined themselves nor examined any defence witness, but put forth their case through the cross-examination of the complainant as well as their statements recorded under Section 313 of the Code of Criminal Procedure. 8 To substantiate the case of the complainant, the complainant examined as many as two witnesses i.e. Nishikant Rajkumar Jain and Pankaj Rajkumar Jain and produced documents, such as, the disputed cheque in question at Exh.16; Bank return memo at Exh.17; postal receipts at Exhs. 18 and 19; U.P.C. receipt at Exh.20, postal acknowledgment at Exh. 21; Envelope of notice returned at Exh.22; Office copy of notice sent by the accused at Exh. 23; Copy of reply given by accused at Exh.24; rejoinder at Exh. 25; original postal receipts at Exhs. 26 and 27; original acknowledgment receipts at Exhs. 28 and 29; Envelope of original notice returned at Exh. 30 and original purchase orders at Exhs. 31 and 32 and original loading receipt at Exh. 33. 5 crap5092.10 9 Considering the said evidence on record adduced/ produced by the complainant, it is apparent that the initial presumption has been raised in favour of the complainant under Sections 118(a) and 139 of the Negotiable Instruments Act that the disputed cheque in question was issued by the complainant to the accused towards discharge of liability partly or in whole. Hence, now the question arises whether the accused has rebutted the said presumption. The standard of proof required for the said rebuttal is on preponderance of probability. In the said context, the defence of the accused is that the complainant did not deliver the goods as per the purchase orders, and therefore, payment of disputed cheque in question was stopped by the drawer. 10 Pursuant to the said defence, it is apparent that the complainant’s witness Nishikant Rajkumar Jain admitted in the cross- examination that the purchase order Exh.31 does not match with the delivery challens at Exhs. 40 and 44 and the purchase order Exh.32 does not match with the delivery challen at Exh.47 in quantity. Moreover, he was shown delivery challen at Exh. 47, which was issued in the name of accused company and thereafter he was also shown tax memo Exh. 43 and he admitted that it is in the name of Wizard company. He further admitted that the delivery challens except Exhs. 46 and 47 are issued in the name of Raw Biotech 6 crap5092.10 Company. He further admitted that he does not know whether the Director of Wizard company and the Director of Raw Biotech Company are different. He further stated that he does not know whether both the said Companies have different accounts and different marketing system. 11 Accordingly, having the comprehensive view of the matter, the defence put forth by the accused and the evidence on record, it appears that the accused has proved and established the said defence on preponderance of probability, and consequently, rebutted the presumption raised against them. 12 Hence, now the burden shifts upon the complainant and it is incumbent upon the complainant to prove and establish beyond reasonable doubt that there existed legally enforceable debt against the accused and the accused issued disputed cheque in question to the complainant towards repayment of the said legally enforceable debt partly or in whole. However, considering the totality of the evidence, learned Trial Court observed that the complainant failed to prove and establish beyond reasonable doubt that there existed legally enforceable debt against the accused and the disputed cheque in question was issued by the accused to the complainant towards the discharge of said legally enforceable debt partly or in 7 crap5092.10 while, and consequently, acquitted the accused and there does not appear to be any flaw in the said observation and findings recorded by the Trial Court. 13 In the circumstances, after scrutinizing and appreciating the evidence on record, the view adopted by the learned Trial Court is a possible view and there is no glaring defect as well as the said view does not appear to be perverse, and therefore, no interference therein is called for in the appellate jurisdiction, and hence, present application deserves to be rejected. 14 In the result, present application, which is sans merits, stands dismissed. Leave to file appeal is refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap5092.10