Milind Shripad Chandurkar vs Kalim M.Khan & Anr

3. The facts and circumstances giving rise to this case are that the appellant/complainant claimed to be the sole proprietor of the Firm, namely, Vijaya Automobiles, which had the business of supplying fuel. The firm had supplied a huge quantity of diesel to respondent no.1 in the month of March 2005. In order to meet the liability, the Respondent no.1 made the payment vide Cheque No.490592 dated 28.4.2005 in the name of the said proprietary Firm drawn on Development Credit Bank, Kurla Branch, Bombay for an amount of Rs.7,00,000/- (Rupees seven lakhs only). The appellant/complainant deposited the said cheque in the account of the said Firm in Bank of India Uran Branch on 12.9.2005.

4. The Development Credit Bank returned the said cheque mentioning "unpaid" with a Memorandum "funds are insufficient".

However, the notice sent by certificate of posting stood served upon him as the respondent no.1 admitted the said fact in his statement under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.). The respondent no.1/accused neither replied to the notice, nor made the payment within 15 days of the receipt of the notice.

5. The appellant/complainant filed a complaint case no.545 of 2005 before the Judicial Magistrate, First Class, Uran under section 138 of the Act 1881 on 22.11.2005. The case was tried, however, the respondent no.1/accused did not enter the witness box and after considering the case, the trial Court vide judgment and order dated 22.12.2006 concluded the trial convicting the respondent no.1 to suffer simple imprisonment till rising of the court and to pay compensation of Rs.7,10,000/- and in default of payment thereof, to suffer simple imprisonment for six months. It was directed that out of the aforesaid amount of compensation, a sum of Rs.10,000/- be credited to Raigad District Legal Aid Committee.

6. Being aggrieved of the aforesaid judgment and order, the respondent no.1/accused filed Criminal Appeal No.85 of 2006. The learned Sessions Judge vide judgment and order dated 18-19/9/2007 dismissed the said appeal, with the amount of compensation being reduced from Rs.7,10,000/- to Rs.7,00,000/-. Thus, the direction to credit the amount of Rs.10,000/- to Raigad District Legal Aid Committee was set aside.

11. The trial Court held that the complainant had deposed that he was proprietor of the Firm, namely, "Vijaya Automobiles" which had the business of supplying fuel etc. and the Firm had supplied the fuel on credit to respondent no.1/accused. The Court also took note of the pleadings taken by the respondent no.1/accused that he had given the cheque to the appellant for Vijaya Automobiles but it was as a security and not to meet any legal liability. Therefore, the respondent no.1/accused had admitted that the appellant had actual control over the said firm. The respondent no.1/accused admitted his signature on the cheque and execution of the cheque. Therefore, the presumptions under sections 118 and 139 of the Act 1881 were attracted.

1 - a single party, for a sum of Rs. 7 lakhs. The appellant would, in addition, have also been carrying out business with other persons.

Thus, a person with such a big business must have had transactions with the bank and must have been a payee of income tax, sales tax etc. Thus, in such a fact-situation, there would be no dearth of material which could have been produced by the appellant to show that he was the sole proprietor of the said firm. The appellant failed to adduce any evidence in this regard, nor made any attempt to adduce any additional evidence at the appellate stage, in spite of the fact that the respondent is raising this issue from the initiation of the proceedings.

24. In view of the above, we do not see any cogent reason to interfere with the impugned judgment and order of the High Court.

The appeal is devoid of any merit and, accordingly, dismissed.

1. In view of the judgment in Criminal Appeal No. 643 of 2011 arising out of Special Leave Petition (Criminal) No. 3045 of 2008, the above Special Leave Petitions are dismissed.