* 1 * Cri.Appln. 31.2010 17.1.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 31 OF 2010 IN CRIMINAL APPEAL NO.....OF 2010 IN C.C. NO. 2767/SS/2005 M/s. Indian Potash Limited .......Applicant V/S. M/s. Pawan Beej Bhandar & Ors. .........Respondents * * * * * * Mr. R.A. Shaikh, Advocate for the applicant. None for respondents no.1 and 2. Mrs. M.R. Tidke, APP for the State-respondent no.3. Coram : Smt. R.P. SondurBaldota, J. 17th January, 2011. P.C. : 1. This application is filed for leave to prefer appeal against the order of acquittal dated 27th November, 2009 passed in Criminal proceedings No. 2767/SS/2005 filed by the applicant-company * 2 * Cri.Appln. 31.2010 17.1.2011 acquitting respondents no.1 and 2. 2. The facts of the case are as follows, Applicant is a public sector undertaking owned by Government of India. It deals with fertilizer goods. Respondent no.1 is a proprietary concern and respondent no.2 is its proprietor. The applicant alleges that it had supplied and delivered fertilizers as per the order placed by respondent no.2 in respect of which the cheque in question for the sum of Rs.1,81,058/- had been issued by the respondents. The cheque when presented for payment was dishonoured on the ground funds insufficient . Thereafter, the applicant claims to “ ” have served statutory notice upon the respondents which returned undelivered with remark that on 9th April, 2003 respondent no.2 refused to accept the said notice. Thereafter, proceedings under Sections 138 and 141 Negotiable Instruments Act came to be filed by the applicant against the respondents. 3. The defence of the respondents as disclosed in the cross- examination of the prosecution witnesses, as well as, the statement of respondent no.2 under Section 313 Criminal Procedure Code was * 3 * Cri.Appln. 31.2010 17.1.2011 that respondent no.2 did not know the witness of the applicant, Mr. A.V. Naknekar who deposed about the sale of fertilizers to the respondents. Respondent no.2 had not placed any order for fertilizers and he did not receive any material as alleged in the complaint. The cheques in question were not issued towards the sale of the fertilizers. The same were lying towards security and they were presented for payment by the applicant-company without the consent and knowledge of respondent no.2. Respondent no.2 had not received the statutory notice and the endorsement on the notice was not his endorsement. He had never refused to accept any notice. Respondent no.2 further stated that the applicant had filed false and fabricated documents. 4. Despite the above defence disclosed, the applicant did not produce the necessary evidence before the Court to establish the transaction of sale of fertilizers. It appears that at the relevant time, one Mr. P.P. Kanan was working as Manager of the applicant and as such incharge of the transaction of sale. When the complaint reached the stage of trial, Mr. P.P. Kanan had retired from * 4 * Cri.Appln. 31.2010 17.1.2011 service and Mr. A.V. Naknekar, Senior Manager (Marketting) was authorised to give evidence on behalf of the applicant. This witness in his cross-examination admitted that he had not made any averment in the index of documents about the purchase order. He had merely filed invoices and not the delivery challans. The invoices had been raised by the Accounts Manager and not by him. He had also not produced copy of the sales-tax returns and copy of payment challans. He had not produced the applicants ledger account alongwith books of accounts of the relevant period. He had certified the invoices as true copies, since the invoices were prepared by the Accounts Manager. He also admitted that the cheque in question had been received by the applicant-company prior to the year 2003. He was however unable to explain the date of the cheque of 26th February, 2003. It was further admitted in the cross-examination that the statutory notice had been sent as per the instructions of Mr. P.K. Kanan. In these circumstances, the applicant actually ought to have examined Mr. P.K. Kanan as its witness who could have brought the necessary evidence before the * 5 * Cri.Appln. 31.2010 17.1.2011 Court about the alleged transaction of sale of fertilizers by the applicant to the respondents. In the absence of the above evidence, the trial court had no choice but to acquit the respondents. Hence, the application for leave to file appeal is rejected. [Smt. R.P. SondurBaldota, J]