IN ILIE I 11011 COURT 01: KARNAT\KA CIRCL IT BENCH Al DHARWAI) I)ATEDTIllS Ii IL 1 h DAY OF OCTOBER O I I BEFORE THE lION’BLE MR. JUSTICE ANANI) BYRAREDI)Y CR1 MINAL APPEAL N32OO( BETWEEN: Kanoria Industries Limited, (Earlier BagalLo Ldvog Limited) BauaIkoi 587 111 Represented by its Officer (Legal) And authorised representative Iv1r.A.R.Nidasheshi, S:o Rajesab Aged about 38 years. APPELIANI (by Shri V.R,Datar, Advocate) AND: Mr,Viaya Traders, By its Proprietor Mr. Ramdas 0 BEat Aged about 4 1 ears. Dealers in Cement and Buildina. Materials, 976. Ashram Road. RESPONDENT BY Shri Girish S Iii remath, :\dvoc ate) This Criminal Appeal is flied under SectiQn 378 4) ot the Code of Criminal Procedure, 1 973 praying to set aside the judument dated 23.11 .2005 passed in C.C .No.3$6/2C02 on the tile of the I Additional JMFC. I3agalkoi acquittina the respondent-accused for the offence punishable under section 138 of the Negotiable Instruments Act, I $ 1. Ibis appeal cojilina on for I learing this day, the court deli\ ered the folloxving: •1UI)GMFT I leard the learned counsel for the appellant and the learned counsel for the respondent. 2. Ihe non-production of the complete books of account, on the basis of which. it was contended that the cheques in question had been issued for a consideration has been negatived by the court below on the ground that though the witness in support ol the complaint had contended that the entire records namely, the hooks of account in support of Exhibit P.7 - a Balance—Sheet were indeed available and c an he produced. \ere not produced during the trial, Ii is this singular circumstance that has compel lcd the trial court to hold that the entire ‘I evidence of PW. I would fall to the ground and is rendered doubtful on account of non-production of such material documents. 3. The endeavour of the learned counsel for the appellant before this court is to demonstrate that the entire books of accounts are indeed available and are presented before the court. The inadvertence of the complainant in not having produced the same at the appropriate point of time, notwithstanding that a question did arise as to whether the same could be produced at the trial, is an unfortunate circumstance and is candidly admitted as a Ibult on the part of the complainant. However, he would submit that in the interest of justice, the fault of the complainant ought to be taken into account and if the case of the complainant could be accepted merely on the production of the original records. which the trial court has held against the appellant. the learned counsel would pray that the appellant he given a further opportunity of 4 ¾ producing these records before the trial court and substantiating its case in full and therefore, would restrict his prayer in this regard to that aspect of the matter. While the learned counsel for the respondent would draw attention to other material documents, which would also indicate that the complaint was not tenable as theft a clear admission of the receipt of payments, against which the cheques are said to have been issued and in this regard. he would draw attention of the court to particular material on record. 4. Having regard to the above circumstances and since the trial court has rejected the complaint primarily on the ground that the supporting documents. in relation to Exhibit P.7, a Balance-Sheet, were not produced. before the court and that therefore, the complaint was doubtful, is an aspect which could be addressed with reference to the material which is indeed available and is presented beibre this court. 5 5. Therefore. in the ends ofjustice. the present appeal is allowed on the short ground that the appellant ought to be afforded a second opportunity of addressing the complete evidence in support of the complaint such as the books of account and such other material as would be relevant, to support Exhibit P.7, a Balance Sheet and the trial court thereafter, after affording a further opportunity to the accused to produce any documents, if necessary, shall rehear the matter on Smerits and thereafter pass an order in accordance with law. With that observation, the appeal is formally allowed. The judgment of the trial court is set aside and the matter is remanded to the trial court. The office is directed to transmit the record to the trial court. Sdb I JUDGE nv