TMI Blog2011 (12) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... business there, whereas the respondent (original accused), namely, Bacchubhai s/o. Mulji Tanna, is resident of Mumbai, and is proprietor of B.M.T. Industries. It is alleged that the accused purchased goods worth Rs. 2,00,000/-from the complainant on credit, on 11-6-1996, and issued cheque bearing No. 235406 of Rs. 50,000/-to the complainant on 31-1-1998 towards part payment, and the accused assured that the said cheque would be honoured. Accordingly, the complainant presented the said cheque on 4-2-1998 for encashment purpose in Nagar Urban Cooperative Bank, Ahmednagar. However, the said cheque was dishonoured and was returned unpaid by the said Bank on 11-2-1998, with the endorsement 'insufficient funds'. Hence, the complainant immediately sent a letter to the accused on 11-2-1998 by courier. It is alleged that on receipt of the said letter, accused requested the complainant to present the said cheque once again with the assurance that the said cheque would be honoured definitely. Relying upon the said assurance, the complainant again presented the said cheque on 17-2-1998 for encashment purpose. However, the said cheque was again dishonoured and returned unpaid due to &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substance, defence of the accused is that the cheque in question, was not issued by the accused to the complainant towards repayment of any dues and there was no business transaction between them in that respect. 7. After considering the oral and documentary evidence adduced / produced by the complainant and the accused, as well as, considering rival submissions advanced by the learned Counsel for the parties, learned trial court arrived at the conclusion that the cheque in question, was not issued by the accused to the complainant towards discharge of legally enforceable debt / liability, and therefore, acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, by the impugned judgment and order dated 16th August 2000. Being aggrieved and dissatisfied by the said judgment and order of acquittal, the appellant i.e. original complainant has filed the present appeal assailing the same. 8. While adducing the oral evidence, the complainant i.e. PW 1 Navnitdas s/o. Narayandas Barshikar, stated that he is dealing with the business of selling and purchase of machinery, whereas accused is proprietor of his business, and in 1996 al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Traders', dated 11-6-1996, and thereupon he stated that it bears signature of his son which is marked as Exhibit 24. However, he stated that he does not know the contents of the said document. He denied that his son was running factory under the name and style as 'Priya Traders'. He also denied that the contents of the said document Exhibit 24 are in the handwriting of his son. He further denied that the machinery of Priya Traders were pledged with M.S.F.C. against the loan obtained by him. He also denied that neither his son nor he himself have any right to sell the machinery of Priya Traders. He also denied that the boilers which were referred by him earlier are mentioned in Exhibit 24. He further stated that he does not know whether the said boilers and other machines are still lying with the accused for repairs and maintenance which were delivered by his son. 11. The accused put up his case, that the complainant had obtained cheque having signature of accused from his son unknowingly, but the same was denied by the complainant. The complainant, however, admitted that the name of his son is Ashish. He also admitted that he had sent letter to the son of the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds' and account not in operation and entry was made on 21-2-1998 which is at Exhibit 47. He has further stated that he does not know if the Bank has filed suit against the complainant for recovery of Rs. 25,00,000/-. He has also stated that he has no personal knowledge about the record and entries. 14. Learned Counsel for the appellant has canvassed that the presumption under Section 118(a) and 139 of Negotiable Instruments Act has been raised in favour of the complainant, that the accused issued the cheque in question, to the complainant towards discharge of liability / debt partly or in whole. In the said context, the complainant examined himself, as well as, examined other two witnesses as mentioned herein above, as well as, adduced / produced oral and documentary evidence, and on the basis of the said oral and documentary evidence, presumption under Section 118(a) and 139 of the Negotiable Instruments Act has been raised against the accused, as aforesaid. However, the accused neither examined himself nor examined any defence witness, but simply cross examined the complainant and his witnesses. It is also canvassed by the learned Counsel for the appellant, that there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed himself nor examined any defence witness in support of the said defence, the accused has put forth defence through cross examination of the complainant and his witnesses, and also through his statement recorded under Section 313 of the Code of Criminal Procedure, and also by production of documents in that regard. Accordingly, learned Counsel for the accused submitted that the defence of the accused is that there was no business transaction between the complainant and accused in respect of the disputed cheque in question, and the goods, in question, were sent by complainant's son for repair and reconditioning under the name and style 'Priya Traders' and not for sale and the cheque was not delivered by the accused to the complainant personally since he has no dealing with the complainant. According to the learned Counsel for the accused, the accused has proved and established the said defence on preponderance of probability and made out a case that the said defence is a probable defence. Hence, it is canvassed that the accused has rebutted the presumption under Section 139 of the Negotiable Instruments Act, and therefore, it was incumbent upon the complainant to prove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector. Hence, it is implicitly clear from the contents of the said covering letter, dated 30-1-1998, of disputed cheque in question, that the said letter was issued by the son of the accused, namely, Ashish Tanna, to the complainant and not by accused to the complainant. Moreover, contents of the said letter state that the said cheque of Rs. 50,000/-refers to the transaction of sale of 2 Boilers to M/s. Kanva Hydro-chem Ltd., Ankleshwar, and the cheque in question, was issued towards said transaction by the son of the accused to the complainant, and obviously, the said cheque was not issued by the accused to the complainant, since there is no dealing between them in that respect. Moreover, a specific question was put to the complainant in the cross examination, Whether accused had sent any letter in respect of cheque subject matter of this case ? , and thereupon the complainant replied that, The son of accused had sent letter along with cheque which was sent on behalf of accused. Hence, suggestion was put to him that he was in need of money, and therefore, he obtained cheque from the son of the accused, but the same was denied by him, as well as, suggestion was given to hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 996 i.e. Exhibit 24, disputed cheque in question, of alleged transaction for Rs. 50,000/-and its covering letter dated 30-1-1998 i.e. Exhibit 21, issued by the son of the accused, namely, Ashish Tanna, making reference therein, that the said cheque in question, of Rs. 50,000/-was drawn towards the sale of 2 Boilers to M/s. Kanva Hydro-chem Ltd., Ankleshwar, it is apparently clear that the disputed cheque in question, was issued for different transaction and not towards any business dealing between the complainant and accused, and hence, it is further apparently clear that the accused has rebutted the presumption raised against him under Section 139 of the Negotiable Instruments Act, on preponderance of probability. 21. In this scenario, it was incumbent upon the complainant to prove and establish beyond reasonable doubt, that there existed legally enforceable debt / liability against the accused, at the time of issuance of disputed cheque in question, and the cheque in question, was issued by the accused to the complainant towards discharge of legally enforceable debt / liability, partly or in whole. However, the complainant has neither produced any cogent legal evidence in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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