1 IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPEAL NO. 51 OF 2006 Titanor Components Ltd., a company incorporated under the Indian Companies Act, 1956 having its Registered Office at Plot Nos.184, 185, 189, Kundaim Industrial Estate, Kundaim, Ponda, Goa 403 115. ... Appellant versus 1. M/s. Techno Engineers, a Partnership firm having its Office at 2nd Floor, 191, Bhera Enclave, Paschim Vihar, New Delhi 110 087 through its Partner Shri M. K. Raina 2. Shri M. K. Raina, Partner, M/s. Techno Engineers, 2nd Floor, 191, Bhera Enclave, Paschim Vihar, New Delhi – 110 087. ... Respondents Mr. S. G. Bhobe, Advocate for the Appellant. Mr. Arun Bras De Sa, Advocate for the Respondents. CORAM : N. A. BRITTO, J. DATE : 21ST AUGUST, 2008 2 ORAL JUDGMENT This is complainant's appeal against the acquittal of the accused under Section 138 of the Negotiable Instruments Act, 1881, by Judgment dated 10-3-2006 of the learned J.M.F.C., Panaji. 2. Heard learned Counsel on behalf of both parties. 3. There is no much dispute as regards the facts. The complainant is the supplier of Water Purification Plant and the accused was their commission agent. In terms of agreement dated 20-8-2001 a cheque for a sum of Rs.3,52,130/- was given by the accused to the complainant and the same was kept replaced from time to time. In terms of the said agreement one such plant was supplied to the Delhi Jal Board upon the advice of the accused. The said plant was to remain as the property of the complainant till such time an order to purchase the same was received from the said DJB(Delhi Jal Board). The said cheque was a post-dated cheque, dated 180 days after the date of agreement. In terms of the said agreement, in case the process of placing an order was not commenced by DJB within 180 days from the date of the despatch of the plant/machine or DJB communicated its decision not to place an order at any earlier period of 180 days from the despatch of the machine for any reason whatsoever, the machine would be taken back by the complainant and it would be the responsibility of the accused to arrange for the machine to be sent back to the complainant on receipt of instructions from the complainant. Clause (h) of the said agreement, which is by 3 far the most important, reads as follows:- “In case order is not placed by DJB and the Machine is returned to TCL, TCL shall forfeit Rs.70,000/-(which is approximately 25% of the deposit less the excise duty) out of the deposit made by TECHNO towards transportation cost, insurance and refurbishing cost. In case of any damage to the Machine during the trial period or any other costs which might have to be incurred incidental to supply the Machine, a sum of upto Rs.140,000/- (which is approximately 50% of the deposit less the excise duty) may be retained out of the deposit by TECHNO. The maximum amount that can be retained by TCL in case the Machine is returned shall be Rs.140,000/-”. 4. The said plant/machine was supplied on or about 25-9-2001. By letter 23-8-2002 the accused requested the complainant to extend the validity of the agreement upto May, 2003 and also informed the complainant about the difficulties they were facing with the said DJB in not placing an order for its purchase. By letter dated 28-4-2003 the accused informed the complainant that they would take some more time to get the order confirmed by the DJB and therefore it would be better in case the complainant collected the said plant/machine from the said DJB and that on the complainant's advice they would be taking delivery of the unit from the DJB and despatch the same to the complainant's factory at Goa. The accused also informed the Complainant to inform the accused whether the plant/machine was to be despatched to Goa or any 4 other place and that the accused would be taking care of all the formalities involved in despatching the said plant. 5. The complainant by its letter dated 8-5-2003 informed the accused that they were unable to accept the plant back after two years of usage by the said DJB and in any case, in case the machine was to be taken back, the accused was required to send a D.D. for Rs. 1.4 lakhs as compensation as per Clause I(h) of the agreement in advance. Alternatively, the complainant informed the accused that the accused was free to purchase the said machine at a special price from the complainant and sell the same to the said DJB by taking an order in the name of the accused and as a very special case, the complainant would be ready to discuss a reasonable price at which the said plant could be sold to the accused. 6. By another letter dated 25-6-2003, the complainant informed the accused that the said plant/machine could be sold to the accused at a special price of Rs.4.10 lakhs inclusive of all duties and taxes as a special price. 7. Meanwhile, on 12-8-2003, the complainant deposited the subject cheque, only to be dishonoured, upon instructions given by the accused to stop payment. 8. By another letter dated 6-9-2003, the accused informed the complainant that a machine like the one supplied to the said DJB and with similar 5 features was available for Rs.2.5 lakhs and that the special price offered by them of Rs.4.10 lakhs of a machine which was used by DJB for two years made no sense and that they were not willing to accept the said offer to purchase the machine of Rs.4.10 lakhs. The accused also informed the complainant that the subject cheque of Rs.3,52,130/- was not issued to the complainant against the cost of the said plant/machine and therefore there was no fun in presenting the same and in case the complainant's offer had the acceptance of the accused, then the accused could have sent the costs by demand draft. 9. Both the parties led evidence and upon considering the same, the learned Trial Court came to the conclusion that the agreement, exhibit 20, supported the case of the accused that the subject cheque was not issued by the accused towards the payment of the machine but it was issued as a deposit which was liable to certain deductions in case of certain eventualities. The learned trial Court also accepted the contention of the accused that the machine would remain the property of the complainant till the order was placed by the DJB and in case the said DJB did not place the order for the purchase of the unit, the responsibility of the accused was only to arrange for the machine to be sent back to the complainant on receipt of instructions from the complainant and although by letters dated 24-4-2002 and 23-8-2002, the accused had informed the complainant that everybody in DJB was confident that the estimate was getting clearance and they would get the order soon, in case the complainant was not happy with the progress, it was for the complainant to have instructed the accused to arrange for 6 the dispatch of the said machine to the complainant. The learned JMFC further noted that from the evidence produced, he was of the opinion that the complainant could not have deposited the cheque if at all the DJB had not placed the order for its purchase and, therefore, the accused had rebutted the presumption which was available to the complainant in terms of Section 139 of the Act. 10. Mr. S. G. Bhobe, learned Counsel on behalf of the complainant submits that the complainant was forced to deposit the cheque when the demand made by the complainant to the accused to send a D.D. for Rs.1.40 lakhs or to purchase the said machine for the special price of Rs.4.10 lakhs was not accepted by the accused. 11. On the other hand, Mr. Arun Bras De Sa, learned Counsel on behalf of the accused contends that at no time the complainant called upon the accused in terms of Clause (g) to take steps to arrange for the return the said machine. 12. In my view, the conclusions arrived at by the learned Magistrate and recorded in para 9 herein above, could not be faulted. Admittedly, the subject cheque was not given by the accused to the complainant as cost of the machine but as a security and all that the complainant was entitled, in case the DJB was not satisfied with the performance of the machine, to get it back through the accused and in that event the complainant was entitled to certain deduction as mentioned in Clause (h) of the said agreement i.e. the accused was liable to forfeit a sum of 7 Rs.70,000/- in case the order was not placed by DJB and further a sum of Rs.1.4 lakhs in case the machine was damaged, etc. Under no circumstances there was any liability on the part of the accused in the sum of Rs.3,52,130/- which the accused was required to meet in terms of the said agreement and for non placing of the order by the DJB for purchase of the machine. It was nobody's case that the machine was damaged for the complainant to have demanded from the accused a sum of Rs.1.4 lakhs. If at all the machine had remained with DJB for over two years it was partly due to the inaction on the part of the complainant in terms of clause (g). The complainant had sufficiently discharged the burden that the accused had given the cheque as security and that at no time, the accused had liability in the sum of Rs.3,52,130/- towards the complainant. 13. In the circumstances, the acquittal of the accused by the learned J.M.F.C. could not be faulted. There is no merit in this appeal. Consequently, the same is hereby dismissed. N. A. BRITTO, J. RD