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2019 (12) TMI 102

..... ctions etc., there is no need to delve into the evidence of this witness. The defence led evidence of four witnesses. DW-1 was an employee of the accused, DW-2 is an employee of the bank from where the son of complainant is supposed to have withdrawn the cash of ₹ 10,000/-. DW-3 is one Arvind Chagan Joshi to whom the computer papers worth ₹ 20,140/- was delivered by Shree Balaji Enterprises and DW-4 is the accused himself. DW-1 confirms having delivered 32 boxes of computer from Shree Balaji Enterprises to Arvind Chagan Joshi, i.e., DW-3. DW-3 is an independent witness who states that on instructions of complainant he received 32 boxes of paper rolls alongwith challan in his factory because complainant requested him to keep it with him as they did not have enough storage space. The Trial Court has given the benefit of doubt to the accused and acquitted the accused. It is settled law that where two views are possible, the benefit should tilt in favour of accused. The onus is on the prosecution to prove the accused to be guilty of offence beyond reasonable doubt. There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presum .....

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..... e goods were delivered on 6th July 1996, did the complainant accept a cheque dated 16th August 1996 because he does not say the accused issued a post dated cheque. Secondly, there is no explanation as to why only on 6th January 1997, almost five months later, was the cheque deposited. There is also an omission to the extent that in the complaint, the complainant states that after giving intimation to the accused, he deposited the cheque on 6th January 1997, whereas his examination in chief is totally silent on that. 4. Per contra, the accused does not deny that he received goods worth ₹ 51,300/-, the accused does not deny that he had issued the cheque for ₹ 51,300/- and the accused does not deny that the cheque was dishonoured because of stop payment instructions. The case of the accused, which can be seen from the reply to the statutory notice issued by complainant, is that the accused also carried on business not just in the name and style of Sarla Enterprises but also in the name of Shree Balaji Enterprises. The complainant placed an order with Shree Balaji Enterprises for supply of computer stationery and pursuant to that the accused (Shree Balaji Enterprises) suppl .....

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..... he accused, DW-2 is an employee of the bank from where the son of complainant is supposed to have withdrawn the cash of ₹ 10,000/-. DW-3 is one Arvind Chagan Joshi to whom the computer papers worth ₹ 20,140/- was delivered by Shree Balaji Enterprises and DW-4 is the accused himself. DW-1 confirms having delivered 32 boxes of computer from Shree Balaji Enterprises to Arvind Chagan Joshi, i.e., DW-3. DW-3 is an independent witness who states that on instructions of complainant he received 32 boxes of paper rolls alongwith challan in his factory because complainant requested him to keep it with him as they did not have enough storage space. DW-3 also states that 32 boxes have been taken away by Jagdishbhai Saboo, son of complainant. DW-3 produces a letter dated 19th October 1996 (Exhibit 51) addressed by him to Shree Balaji Enterprises stating that the 32 boxes received by him does not belong to him and hence he has kept both the challans and material belong to Jagdishbhai Saboo of Jagdish Associates who had instructed to keep this material at his place till he delivers it to his customers. The letter also states that he retained the challan to be given to Jagdish Saboo an .....

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..... thdraw the amount and that is how the signature of Jagdish Saboo is on the reverse of the cheque. The prosecution has not led any evidence to prove that this was not the signature of Jagdish Saboo or Jaiprakash Saboo. The accused also has stated that on 15th October 1996 Jagdish gave order of computer paper of ₹ 20,000/- and he gave address of party. On 19th October 1996 those computer papers were delivered to DW-3 - Arvind Chagan Joshi, who issued the letter dated 19th October 1996 (Exhibit 51). DW-4 also says that Jagdish agreed to adjust the amounts and on 23rd October 1996 DW-4 issued stop payment instructions and on 24th October 1996 he gave ₹ 21,140/- to Jagdish Saboo in cash. The accused also says he had withdrawn ₹ 20,000/- from bank on 24th October 1996 and gave ₹ 21,140/-. He has not been called upon to prove that he withdrew ₹ 20,000/- in the cross examination. One more thing which is really crucial is Exhibit 63. This is a letter dated 6th November 1996 addressed to Jagdish G. Saboo, Jagdish Enterprises, Bhayandar, in which the accused has recorded that the entire amount, for which he had issued the cheque for ₹ 51,300/-, has been pai .....

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..... ellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 9. There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquitt .....

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