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TMI Blog2016 (7) TMI 1610X X X X Extracts X X X X X X X X Extracts X X X X ..... such circumstances, the revision application is taken up for final disposal by consent of the parties. 2. The facts necessary for the disposal of the application may be stated thus. The accused, Smt. Kalpna Gawade is the proprietress of Kalpna Mines and Minerals and is engaged in the business of supplying iron ore. According to the respondent/complainant, the petitioner had agreed to supply 50,000 DMT of iron ore having 54.00% Fe content and the respondent had agreed to purchase the same as per the agreement between the parties. The respondent had paid an amount of Rs. 2.50 crores by Demand Draft which was duly acknowledged by the petitioner. However, the petitioner failed to supply the iron ore as agreed. She however repaid Rs. 1 crore towards part payment/refund of the amount which was received by the respondent. It was contended that towards the balance amount, the petitioner issued a cheque bearing No. 699624 dated 12/3/2010 for an amount of Rs. 1.50 crores drawn on Indian Overseas Bank, Porvorim branch. The cheque got dishonoured for want of sufficient funds. Hence the respondent issued a notice dated. 22/7/2010, which was returned unclaimed. This led the respondent to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reported in (2008) 1 SCC 258 and Krishna Janardhan Bhat Vs. Dattatraya G. Hegde reported in 2008 A.I.R. S.C. 1325. It is submitted that there is no evidence on record that the amount of Rs. 2.50 crores was transferred to the account of Ms. Chowgule and Company. The learned counsel has also pointed out that the demand draft Exhibit 53 is dated 11/1/2010. However, the amount of the demand draft is shown to be debited to the account of the respondent, much thereafter i.e. 12/3/2010, which is not properly explained. The learned counsel has also taken exception to the notice, Exhibit 44 saying that it was not addressed to Kalpana Gawade, Proprietress of M/s. Kalpana Mines and Minerals. It is submitted that the Courts below were swayed away by the presumption arising under section 118 r/w 139 of the Act in finding the petitioner guilty. He, therefore, submits that the impugned orders are based on gross mis-appreciation of the evidence on record and resultantly the finding is rendered perverse which requires interference by this Court. 7. On the contrary, it is submitted by the learned counsel for the respondent that the petitioner has failed to discharge the burden arising out of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 would show that the respondent has drastically changed the said case and has introduced altogether a new case. PW 1 states that the agreement between the petitioner and the respondent for supply of iron ore was a written agreement and he can produce the same. Then he states that the said agreement was with the sister concern of the complainant. He thereafter produced a copy of the agreement at Exhibit 51. The said agreement clearly shows that it was between M/s. Grand Resources as the buyer and the petitioner as the seller and not between the petitioner and the respondent. That apart, Clause 7 of the said agreement shows that the consideration amount towards the purchase of iron ore was to be paid by demand draft in favour of M/s. Chowgule and Company. Coming back to the evidence of PW 1, he states that the respondent is a partnership firm comprising of four partners namely, Sayeed Nayeemuddin, his two sisters and one Aleem Ahmed. He states that the respondent firm is registered in Karnataka and he was looking after the affairs of the said firm in Goa. He states that the notice and the complaint was drafted as per his instructions. He states that the written agreement referred b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Grand Resources and not by the respondent which are said to be independent entities. Be that as it may, PW 1 further states that he has no document to show that the petitioner had agreed to supply iron ore to the respondent. He in categorical terms has admitted that no money was paid directly to the petitioner either by the respondent or Grand Resources, in terms of the agreement Exhibit 51. When a specific question was asked to PW 1 whether the petitioner had received the amount of Rs. 2.5 crores (as per para 3 of the complaint) or whether the amount was paid in favour of M/s. Chowgule and Company, the witness stated that the amount was paid to Chowgule and company as per the instructions of the accused. At this stage it may be mentioned that this is yet another version coming for the first time in evidence. In further cross examination this witness has stated that he has not stated anything in the complaint about repayment of Rs. 1 crore made by the petitioner. Last but not the least, this witness has stated in the concluding part of the cross examination that the statement Exhibit 58 does not show that the amount of Rs. 2,50,12,500/- has been remitted to M/s. Chowgule and Comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent demanded an advance payment of Rs. 2.50 crores towards which the respondent had passed two cheques one bearing No. 699624 dated 12/3/2012 and for Rs. 1.50 crores and cheque No. 699625 dated 15/3/2012 for Rs. 1.00 crore. However, as the representative of the respondent insisted for immediate payment and therefore an amount of Rs. 1.00 crore was transferred to the account of the respondent by RTGS on 12/3/2010. It is further the defence that as the representative failed to supply the iron ore on account of a ban on transportation of ore from Karnataka, the petitioner requested for refund of the amount of Rs. 1 crore and also return of the cheque, which was not done. The defence so suggested to PW 1 has been denied. However, the question is whether the case as set up by the complainant itself is acceptable with glaring discrepancies and when the fact about payment of Rs. 2.50 crores to the petitioner is not proved on record. At any rate, going by the evidence of PW 1 the amount was paid to Chowgule and Company and thus it cannot be accepted that the subject cheque issued by the petitioner was towards the refund of the balance consideration amount of Rs. 1.5 crores. 14. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered, cannot be accepted. The Demand Draft has been exhibited as Exhibit 53. The said Demand Draft dated 11.1.2010 is for 2.50 crores drawn in favour of Chowgule and Company. Importantly, there is an endorsement of Kalpana Mines and Minerals which has not been disputed nor there is any suggestion disputing the said endorsement of the Accused nor there is any clarification in that regard. The said Demand Draft at Exhibit 53 with the rubber stamp of the Accused having received the original of the Demand Draft supports the case of the Complainant that the Demand Draft was drawn at the instance of the Accused and that she was involved in the said transaction, which was subject matter of the complaint." 16. In so far as the reference to M/s. Grande Resources in the agreement Exhibit 52 is concerned it is held thus: What therefore, emerges from the deposition of PW 1, Tabrej coupled with the documents adduced on record is that payment of Rs. 2.5 crores at Exhibit 52 was made by the Complainant on behalf of M/s. Grand Resources of which complainant is a sister concern and that the ore was to be supplied by the Accused through Chowgule and Company and that it was at the instance of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more aspect to which I would briefly refer. 20. In the case of Dashrath Rupsingh Rathod Vs. State of Maharashtra reported in (2014) 9 SCC 129, the Hon'ble Apex Court has held in para 58 of the judgment as under: 58(3) The cause of action to file a complaint accrues to a complainant/payee/holder of a cheque in due course if. (a) the dishonoured cheque is presented to the drawee bank within a period of six months from the date of its issue. (b) if the complainant has demanded payment of cheque amount within thirty days of receipt of information by him from the bank regarding the dishonour of the cheque, and. (c) if the drawer has failed to pay the cheque amount within fifteen days of receipt of such notice. 21. Thus the issuance of the notice and non payment of the amount by the accused within the stipulated period is a part of the requirement of the cause of action. It is trite that section 138 of the Act being a piece of penal provision has to be strictly construed and there is no scope for its liberal interpretation. It would be necessary to examine whether the legal notice as required by the said section was properly issued and said to be served. The legal notice is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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