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2019 (12) TMI 102

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..... hat 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 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 acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. For acquitting the accused, the Trial Court observed that the prosecution had failed to prove its case. The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law - the order of acquittal need not be interfered with - Appeal dismissed. - CRIMINAL APPEAL NO.406 OF 2002 - Dated:- 20-11-2019 - K.R. SHRIRAM, J. Mr. Chintan Shah i/b. Mr. Sandesh Patil for appellant. Mr. S.V. Gavand, APP for respondent no.2. ORAL JUDGMENT : 1. This is an appeal filed under Section 378 of the Code of Criminal Procedure impugning an or .....

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..... he 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) supplied the same and the value of that supply was ₹ 20,160/-. As regards the cheque for ₹ 51,300/-, it was a post dated cheque which was handed over to complainant on 26th July 1996. The goods supplied by complainant were of inferior quality and quantity also was not as per the challan and the accused called upon the complainant to replace the goods but complainant s son (Jagdish Saboo) approached the accused some time on 30th July 1996 requesting that the discrepancies of the goods can be adjusted as they were regularly carrying on business and requested the accused to release atleast ₹ 10,000/- because the cheque issued was of 16th August 1996. Accordingly, the accused gave a bearer cheque for ₹ 10,000/- to the son of the complainant, which has been encashed. It is also stated that the accused requested the complainant to return the cheque dated 16th August 1996 in o .....

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..... es 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 and the material was not checked by him. In the cross examination, DW-3 has confirmed that he had dealings with Jagdish Associates and his relationship with Jagdish Associates have been good. DW-3 also says that he does not have any documentary evidence to show that Jagdish Saboo instructed him to keep the material at his premises. An attempt has been made by the prosecution to discredit this witness to say that a cheque for ₹ 5,000/-, that he had issued in favour of Jagdish Associates, was dishonoured and to avoid the payment, he was trying to discredit Jagdish Associates. DW-3 states that he has paid the amount of ₹ 5,000/- to Jagdish Associates later. What is noticeable is that even from the cross examination it has come out that there has been business dealings between Jagdish Associates and DW-3. Strangely prosecution has not led evidence of Jagdish Saboo, the son of PW-1 o .....

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..... 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 paid in full by giving on 30th July 1996 ₹ 10,000/- in cash vide bearer cheque no.014022, on 19th October 1996 delivering goods worth ₹ 20,160/- by Shree Balaji Enterprises and on 24th October 1996 by giving ₹ 21,140/- in cash. Accused has also produced under certificate of posting receipt, which is marked Exhibit 64. There is no reply to this letter. As against this, there is no explanation from the complainant as to why they deposited the cheque only on 6th January 1997. Complainant does not even say either in the complaint or in the evidence of PW-1 that the accused requested them not to deposit the cheque until January 1997. In the complaint, it is stated after giving intimation to accused, the cheque was deposited, whereas PW-1 does not say so in his evidence. This is a glaring omission. 8. In these facts and circumstances, the Trial Court has given the benefit of doub .....

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