1 Cri.Appln. 4544.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4544 OF 2010 Anjali fruits Vegetables Caning & Trading Center, Padhegaon through its proprietor APPLICANT VERSUS Bhoomika Enterprises, through its proprietor & ors RESPONDENTS ..... Shri S.P. Brahme, Advocate for the applicant Shri V.S. Kadam, Advocate h/f Shri R.N. Dhorde, Advocate for respondent Nos. 1 & 2 Shri S.G. Nandedkar, Advocate for respondent No. 4 ..... CORAM : U.D. SALVI, J. DATED : 9 th September, 2011. PER COURT : 1. Heard. Perused application and the record. 2. The applicant is seeking leave to prefer an appeal against the Judgment and Order of acquittal of the respondent Nos. 1 & 2 of the offences punishable under Section 138 of Negotiable Instruments Act,1881, passed in Criminal Appeal No. 4/2004 by the 2 Cri.Appln. 4544.10 learned Additional Sessions Judge, Kopergaon, District Ahmednagar on 13-07-2010. 3. The legal battle between the parties began with the lodging of R.C.C. No. 229/1999, in the Court of the learned Judicial Magistrate, First Class, Kopergaon, District Ahmednagar, against the respondent No. 1 / Bhoomika Enterprises, through its proprietor Shri Vijay Soma Sawant, respondent No. 3 Bhagyam Enterprises and respondent No. 4 – Shri Bhalchandra Shripat Kubal, the proprietor of respondent No. 3 by Anjali Fruits Vegetables Caning & Training Center, Padhegaon i.e. appellant / complainant, Under Section 138 of the Negotiable Instruments Act, 1881 ( For short “ N.I. Act, 1881”) and 420 read with Section 34 of Indian Penal Code, 1860. 4. The learned Judicial Magistrate, First Class, Kopergaon, District Ahmednagar, convicted the respondent No. 2- Vijay Soma Sawant, for the offence punishable under Section 138 of N.I. Act, 1881, sentenced him to undergo imprisonment till rising of the Court and pay fine of Rs. 5,000/- in default of fine, to suffer one month simple imprisonment, and pay compensation to the complainant of Rs. 3,89,925/-. The respondent No. 4- Bhalchandra Kubal was acquitted for the offence punishable under Section 420 3 Cri.Appln. 4544.10 of Indian Penal Code, 1860, vide Judgment and Order dated 29-05-2004 in R.C.C. No. 229/1999. 5. The complainant preferred Criminal Appeal before the learned Additional Sessions Judge, Kopergaon, District Ahmednagar for enhancement of sentence imposed on respondent No. 2 / Accused – Vijay Soma Sawant. The respondent No. 2 / accused – Vijay Soma Sawant simultaneously preferred Criminal Appeal No. 4 of 2004 before the Additional Sessions Judge, Kopergaon, District Ahmednagar. These appeals were heard on merits and the learned Additional Sessions Judge, Kopergaon, District Ahmednagar, allowed appeal of the respondent No. 2 / Accused -Vijay Soma Sawant and acquitted him. As a corollary to this acquittal the Criminal appeal No. 2/2006 for enhancement of sentence was put to rest. 6. Now, learned Advocate Shri Brahme for the appellant / complainant, submitted that the learned Appellate Court erred in acquitting the respondent No. 2 / Accused -Vijay Soma Sawant, inasmuch as it ignored the presumption under Section 139 of the N.I. Act, 1881, and proceeded to rely on stray admissions in the cross examination of the complainant. He submitted that the cheque in question was issued for the satisfaction of the price of 4 Cri.Appln. 4544.10 the goods supplied through the Super Stockist, the respondent No. 4- Bhalchandra Kubal, to the respondent No. 2. In support of his submissions, he placed reliance on the Judgments delivered by the Hon’ble Apex Court, as well as by this Court in “( K. Bhaskaran V. Sankaran Vaidhyan Balan & another, reported in 2000, Bom. C.R. [Cri] 178 {Supreme Court}) and ( Matoshri Cashew Nuts V. Mohammad Abdul Kadar, 2010{1} Bom. C.R.[Cri.] 854)”. Learned Advocate Shri Brahme for the appellant / complainant, took this Court through the evidence of the appellant / complainant, and the defence witness Shivaji Awahad. According to him, evidence of DW-1 Shivaji did not crystalize the defence that the blank cheque in question was given for purchase of refrigerator to the respondent / Accused No. 4- Bhalchandra Kubal and it ultimately fell in hands of the complainant and was misused. Thereafter, he commented that the defence evidence is mere illusion. 7. The learned Advocate Shri Kadam for the respondent No. 2 / accused, submitted that, keeping aside the defence evidence, the evidence of the complainant provides material for probablising the defence in rebuttal of the presumption raised under Section 138 of the N.I. Act, 1881. He submitted that the complainant who put-forth the case of issuance of cheque for 5 Cri.Appln. 4544.10 satisfaction price of the goods sold had actually deposed in the cross-examination that the cheque was only signed by the respondent No. 2/ accused-Vijay Sawant, and they had not sent the products of value of Rs. 3,89,925/-, the sum for which the cheque was drawn to the respondent No. 2 / Accused Vijay Sawant. He further pointed out from the agreement (Exh. 114) between the complainant and respondent No. 2/ Accused that there was a clear arrangement for payment of money due towards the transactions between the complainant and accused as spelt out in clause No. 6 of the said agreement. It reads that the Distributor ( the Respondent No. 1/ Bhoomika Enterprises) shall make payment of the goods by way of cash, Demand Draft, / Cheques of same day on the delivery in favour of Super Stockist payable at Mumbai. He further pointed out from the evidence that the Super Stockist of goods manufactured by the complainant was to be the respondent No. 3 – Bhagyam Enterprises, run by the respondent No. 4- Bhalchandra Kubal. These facts, he submitted, rebutt the presumption under section 138 of N.I. Act, 1881, and probabalises the defence that the respondent No. 2 / Accused did not owe anything to the complainant and the cheque was not drawn by him towards the satisfaction of legally enforcible debt, and as such the learned Appellate Court was right in acquitting him. Taking hint from the Judgments cited, one can see the merit in the submission 6 Cri.Appln. 4544.10 that Section 139 of the N.I. Act, 1881 enjoins the Court to presume that the holder of the cheque had received the cheque for discharge of debt and liability, and it can also be legally inferred from the admission of the signature on the cheque that the cheque was made or drawn on date which it bears. It can also be seen from the Judgment of ( Matoshri Cashew Nuts V. Mohammad Abdul Kadar) (referred supra), that there was no cross- examination on the material aspect of the case i.e. dues outstanding in course of running business of the complainant, and the accused had not examined himself or produced in the evidence receipts of payment made towards liquidation of such debt to un- settle the said facts of legally recoverable debt and, therefore, the finding of acquittal in favour of the accused was found neither reasonable nor probable. In the present case, the Appellate Court has scanned the evidence of the complainant at length, giving thought to every small detail and made its observations in Para No. 7 to 11 as under : “ On the germane point in this case with regard to existence of liability, the complainant's case is that the accused No. 4 gave the said cheque to the complainant which was bearing signature of accused No. 2 and was drawn in the name of accused No. 1. The proprietor of the complainant Pooja Nene deposes in that context that accused Nos. 2 & 4 jointly issued cheque No. 102137 dated 16-03-1999 i.e. Exh. 58. She further categorically states that both accused 7 Cri.Appln. 4544.10 Nos. 2 & 4 were present at the time of issuing the cheque Exh. 58. In this context there are several statements made by the witness in the cross examination. At one place she states that she had no idea whether the cheque was given by accused No. 2 through accused No. 4 to one Shivaji Avhad. Although she tries to maintain that the cheque was issued both by accused No. 2 Sawant and accused No. 4, Kubal she admits that the cheque is only signed by Sawant, accused No. 2. Admittedly the contents of the cheque are not in the hand writing of accused No. 2 Sawant. She states at another place that she did not know whether the said cheque was brought by Nagesh Davange. She also says that she did not know whether the cheque was blank and signed by accused No. 2, Sawant. In further cross examination she tried to say that the cheque was issued in January, 1999. However, when she was contradicted with the contents of Exh. 109 she tried to avoid answer by saying that she did not remember whether they received the cheque prior to the said letter Exh. 109. The cheque Exh. 58 is dated 16-03-1999 and it is not the case that post dated cheque was given. The letter exh. 109 is dated 07-12-1998. There is mention in the said letter written by the husband of complainant to accused No. 4 Kubal informing him that he will have to present the cheque of Bhumika Enterprises given by Mr. Kubal to them to the bank, there being no alternative. Why fight shy of presenting the cheque straight way in bank. Admittedly the husband of the complainant was also looking after the business. The leatter Exh. 109, therefore, falsifies statement of the complainant that the cheque was issued by accused No. 2 in January, 1999. The language of the letters Exhs. 109 and 110 and tenor indicate quite a different story. She admits that there was only one cheque and there was no other cheque of Bhumika Enterprises. Thus, cheque of Bhumika Enterprises was already with the complainant before January, as against her claim that the said cheque was issued by the accused No. 2 and that too in January, 1999. The tenor of the letters Exh. 109 and 110 creates doubt whether cheque was really given for discharge of liability as contended. Further her answers to the question with regard to 8 Cri.Appln. 4544.10 whether the cheque was issued or there was only a blank cheque given are evasive. If at all the cheque was issued by the accused Nos. 2 & 4 there was no reason for her to deny knowledge whether the cheque was brought by Nagesh Davange or whether it was blank. If really the cheque was issued both by accused Nos. 2 & 4 she would not give such evasive reply. The contents of the cheque are admittedly not in the hand writing of accused No. 2. It is in all this background the complainant’s claim that the cheque was issued by both the accused Nos. 2 & 4 at her manufacturing unit has to be considered. It appears clear that the cheque was already in custody of complainant and was not issued as claimed by her with the defence of the accused that it was blank. Now, so far as the liability is concerned, the entire transaction in question appears to be between the complainant and the accused No. 4 Kubal. The letters exh. 109 to 112 quite evidence on said fact. Even in the cross examination the complainant states that accused No. 4 Kubal has signed on the bills. She says that she delivered products to Kubal but she again tried to say that Kubal told her to supply goods to accused No. 2 Sawant. But then she says that she did not remember the value of the goods supplied to accused No. 2 Sawant. She did say that she maintains the account of transaction but no such accounts are produced. She says that she issued the bill to accused No. 4 Kubel. She denies knowledge whether the accused No.2 Sawant and accused No. 4 Kubal have a joint venture but she says that they are only friends. The complainant has stated at one place that the cheque was for the amount of products supplied from 03-05-1998 to September, 1998. She admits that they had not sent the products of the value of Rs. 3,89,925/- to accused Sawant. She did not remember the value of the goods sent to accused No. 2 Savant. She claims to have maintained the account and showed her willingness to produce the same however, she does not produce the account books. She says further that they might have sent products less than the value mentioned in the cheque exh.58. 9 Cri.Appln. 4544.10 She admits that accused No. 2 Sawant was concerned with only one firm and not the other; Sawant did not admit to pay the deposits of other firms. She says that they are very well aware that the total amount on the cheque was not due from accused No. 2 Sawant. It is revealed from the entire evidence that there was an agreement between the complainant and the accused No. 3 and 4 being the proprietor for making the goods of the complainant by taking orders from the customers and supplying them and collecting the cheques and deposit in the account of the complainant. The agreement exh. 100 speaks about the same. As per the said document accused Nos. 3 & 4 were to place orders for the supply of goods and complainant was sending the goods by drawing the bills in the name of the Super Stockists and forwarding agents or distributors. It appears to be agreed between the parties that the transaction of sale and purchase would be between the complainant and the Super Stockists with the mediation of accused Nos. 3 & 4. The complainant opened the bank account in Bombay and accused Nos. 3 & 4 were supposed to collect the cheques or cash from the Super Stockists, carrying and forwarding agent, distributors and dealers and deposit the same in the bank account of the complainant. There was commission of 3 per cent fixed to be paid to the accused Nos. 3 & 4. So far as accused No. 2 is concerned there is also an agreement exh. 114 entered into with the complainant. The agreement is of distributorship. Accused No. 1 appears to have been appointed as distributor for the complainant. Except this document absolutely there is nothing so far as the transaction between the complainant and the accused Nos. 1 & 2 are concerned. The complainant every where speaks about the transaction with accused No. 4, Kubal. When it comes to bills she says that they were in the name of accused No. 4 Kubal. The correspondence 10 Cri.Appln. 4544.10 with exh. 109 to 113 clearly speak about the transaction between the complainant and accused No. 4 Kubal. There is no whisper about accused No. 2 anywhere. There is a bald statement in the cross examination that some goods were sent to Sawant also about which there is absolutely nothing produced much less account or bills. There is no dispute that the cheque exh. 58 is signed by accused No. 2 Sawant and it came in the hand of the complainant. Complainant claimed that the cheque was issued by accused Nos. 2 to 4 at her manufacturing unit which is falsified by her own admissions and record in particular although she says that the cheque was issued in January 1999, the letters exhs. 109 to 111 evidence that the complainant was already in possession of the cheque. The letters exhs. 109 to 113 evidence that the cheque was given by this Kubal to complainant may be some time prior to January 1999 in contrast with the complainant’s case. It is defence that the cheque when it went into the hand of the complainant was blank. The tenor of the letters exh. 109 to 113 probablise the same. At any rate, the claim of the complainant that the cheque was issued by accused Nos. 2 and 4 at her manufacturing unit is falsified. It is suggested to the complainant that in fact the cheque was blank when it came to their hands. The defence is that while sending document by Kubal the blank cheque went with that. One thing is sure that the cheque was not issued by accused Nos. 2 and 4 as contended by the complainant. Then as I have observed there is absolutely no evidence with regard to liability of accused No. 2 towards the complainant. The liability whatever was even according to the complainant was of accused No. 4. Even about that there are no accounts produced but that is different matter. Complainant admits that accused No. 2 was not owing the amount mentioned in the cheque. She tried to say that partly he was not owing but she has not stated as to how much amount was due from the accused No. 2 much less produced any evidence in that regard.” 11 Cri.Appln. 4544.10 8. These observations have basis in the evidence and which probablises the defence of the accused. Leave is, therefore refused. ( U.D. SALVI, J. ) SDM* September-11