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2024 (5) TMI 518 - BOMBAY HIGH COURTDishonour of Cheque - liability created in favour of the Complainant by the Accused or not - MoU between the manufacturer and the retailer - The retailer issued multiple cheques to the distributor, which were subsequently dishonoured - presumption under Section 139 of NI Act was rebutted by the Accused - differences in the evidences - presumption of innocence in criminal trial - evidentiary value of evidence - proof of foundational facts for drawing of presumption under Section 139 of NI Act on the basis of available documents - HELD THAT:- The view of the trial Court is hyper technical view. The trial Court has overlooked the basic facts about the roles played by CW No. 1 and CW No. 2. The trial Court scrutinized their evidence by presuming that they are the witness to prove a particular fact only but in fact, they are the witness in respect of the facts forming transaction right from placing of the orders till filing of complaint. The trial Court overlooked the fact that the Complainant is not a natural person but an artificial entity working through natural persons and that too, in the office situated at different places. The trial Court decided the complaint as if the trial of bodily offences is being conducted. The complaint under Section 138 of NI Act is based on the documents and proved by giving oral evidence. On some occasion, these complaints involve business transactions. It involves the correspondence in between the parties made in usual course. Such correspondence throws light on the intention of the parties. The trial Court overlooked the difference in relationship in between the H.P., and Kores, Kores and Ambitious and Ambitious and H.P., and Ambitious. No doubt, Kores on behalf of H.P., was selling the products to the Sub-distributors. It is true that the MoU in between H.P., and Kores was not produced. There must be some financial terms. However, it is already observed the relationship in between Kores and Ambitious, stand on different footing. It is purely sale and purchase of products. Ambitious was getting some incentives from H.P. Ambitious was not satisfied - The MoU is restricted only to incentives by way of sale promotion and it has nothing to do with basic transaction of sale and purchase of products. This defence was taken by the Ambitious just to avoid a lawful payment to Kores. This finding is given on the basis of available documents and on the basis of documents not produced by the Ambitious including the Court litigation. The cheques are the cheques within the purview of instruments. The instructions given for not depositing these cheques by Ambitious could not be substantiated by bona fide dispute with Kores. In fact, it was a dispute with the H.P. Coupled with this fact, no evidence was adduced to prove the sufficiency of amount in the account by Ambitious. The Kores have complied with the provisions of Section 138 of the NI Act relating to issuance of notice in time, receipt of notice and filing of complaint in time - the judgment of acquittal needs to be reversed - the Accused has committed offence punishable under Section 138 of the NI Act. The order of conviction upheld - appeal allowed.
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