TMI Blog2016 (7) TMI 1610X X X X Extracts X X X X X X X X Extracts X X X X ..... ase presupposes that the payment by the respondent/complainant to the petitioner/accused is proved. In the present case admittedly the payment is made to Chowgule and Company and not to the accused and as noticed earlier, even that aspect is not proved on record, as has been admitted by PW 1 on basis of the statement Exhibit 58. Though the respondent claims that the said transaction is the same transaction as in Exhibit 51, the agreement on the contrary shows that it is between M/s. Grand Resources and the petitioner. The findings as recorded by the Courts below are against the weight of the evidence and not borne out of the record and are clearly unsustainable - Criminal Revision application is allowed. - Criminal Revision Application No. 11 of 2016 - - - Dated:- 4-7-2016 - C.V. Bhadang, J. For Appellant: S. Vales, Advocate For Respondents: Shivan Desai, Advocate JUDGMENT C.V. Bhadang, J. 1 . By this criminal revision Application, the petitioner takes exception to the judgment and order dated 13/1/2016 passed by the learned Sessions Judge at Margao in Criminal Appeal No. 60/2013, by which the appeal filed by the petitioner is dismissed and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner and Shri Desai the learned counsel for the respondent. With the assistance of the learned counsel for the parties, I have perused the record and have gone through the judgments of the Courts below. 6 . The learned counsel for the petitioner has pointed out to an agreement (Exhibit 51) dated 13/1/2010 between M/s. Grand Resources as the buyer and M/s. Kalpna Mines and Minerals as the seller. The learned counsel has specifically referred to Clause 7 of the same under which the buyer was supposed to pay to the seller an advance amount of ₹ 2.5 crores by demand draft in favour of M/s. Chowgule and Company payable at Vasco da Gama, Goa. The balance was to be released against every 5000 metric tonnes delivery. It is submitted that the agreement Exhibit 51 was produced during the cross examination of PW 1. He submits that the said agreement is not between the petitioner and the respondent for supply of iron ore. It is submitted that PW 1 has admitted that the respondent and M/s. Grand Resources are distinct entities and none of the partners of the respondent firm are the partners of M/s. Grand Resources. The learned counsel has extensively referred to cross examination of PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies in the evidence of PW 1 are of a minor nature and that the respondent has established his case. He submits that the scope of interference available in revisional jurisdiction is limited. Unless and until it is found that the finding recorded is perverse, no interference is called for. In the submission of the learned counsel for the respondent the impugned orders do not exhibit any perversity requiring interference. He, therefore, submits that the petition be dismissed. 8. On hearing the learned counsel for the parties and on perusal of the record, I find that the impugned judgment and orders cannot be sustained for reasons more than one. Before proceeding to consider the rival circumstances and the submissions made, it is necessary to state that the parties have not raised any ground based on want of the territorial jurisdiction of the Magistrate to entertain the complaint or the authority of PW 1 to depose on behalf of the respondent. A perusal of para 12 of the judgment of the learned Magistrate would also show that the objections in respect of the authority of PW 1 to depose on behalf of the complainant was not pressed. Thus there is no need to examine the issue about th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the partners of the respondent and M/s. Grand Resources are related to each other, they are sister concerns. He further states that the amount of ₹ 2.5 crores was paid from the account of the respondent to Chowgule and Company (and not to the petitioner). He further states that the demand draft was in the name of Chowgule and Company and it was handed over to the petitioner. He adds that the demand draft was drawn in the name of M/s. Chowgule and Company as the accused informed that the ore would be supplied through Chowgule and Company. He thereafter claims that the demand daft of ₹ 2.5 crores was encashed. It is apparent that this case is not set up in the complaint. 10. PW 1 produced a statement of account issued by State Bank of India (Exhibit 52) and the demand draft at Exhibit 53, which is dated 11/1/2010. He admits that the money towards the demand draft should have been debited to the account of the respondent on 11/1/2010 or prior to that. When he was confronted with the entry in Exhibit 52 where the said amount is shown to be debited on 12/3/2010 he makes a volt face saying that this is not the statement he intended to produce and will produce the releva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the demand draft to the petitioner cannot mean that the proceeds of the demand draft were drawn was paid to the petitioner. That apart, PW 1 has clearly admitted that the amount was paid to Chowgule and Company and in the concluding part of the cross examination has even admitted that the statement Exhibit 58 does not show that the amount was eventually credited to the account of Chowgule and Company. Thus even assuming that the amount was paid to Chowgule and Company on the instructions of the petitioner (which case has been for the first time set up in the cross examination), there is no evidence that the amount had been eventually credited to the account of Chowgule and Company. As noticed earlier, PW 1 has gone to the extent of saying that the complainant in the case ought to have been M/s. Grand Resources for which he has no authority. If that be so, can it be said that the discrepancies were of minor nature and not striking at the root of the case set up by the complainant. In my humble view the answer has to be in the negative. From the consideration of the evidence on record I find that the respondent has not come out with the real nature of the transaction and a clear c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gnature on the demand draft. The learned counsel for the petitioner has pointed out that this aspect which is specifically disputed. That apart as indicated earlier, the physical handing over of the draft and its acknowledgment cannot tantamount to payment of the amount which such draft represents. Further more, PW 1 himself stated that the amount was paid to Chowgule and Company. It is thus difficult to accept the reasoning that the discrepancies are either minor or have been properly explained. 15. It appears that it was argued before the learned Sessions Judge that the evidence is contrary to the contents of the complaint which is dealt with in para 34 and 35 which reads thus as under: 34. PW 1, Tabrej has also clarified that before filing of the complaint there was a meeting between them and the Accused and the Accused assured them that the payment will be made as they will receive the amount from Chowgule and Company as no iron ore is supplied and accordingly, they made payment of one crore in favour of the Complainant and that is the reason he has not stated so in the complaint or in the legal notice as to why Demand Draft was drawn in favour of Chowgule and Company. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve not assisted the accused in rebutting the presumptions nor establishment of the defence of the accused on the basis of preponderance of probabilities . 18. A perusal of the judgments of the Courts below show that they were swayed away by the applicability of section 118 r/w with section 139 of the Act. It is now well settled that while the complainant is required to establish the case beyond reasonable doubt, the accused can discharge the burden on preponderance of probabilities. This can be done on the basis of the cross examination of the witness of the complainant and any other material available on the record and it is not necessary that for this purpose the accused should enter into the witness box. The question really is about the extent to which such presumption can operate and, can the benefit of such presumption be availed when the case set up by the complaint, is found to be not substantiated. At the cost of repetition, it is necessary to state that the case is that the amount of ₹ 2.50 crores was paid as consideration for purchase of iron ore which transaction never materialized and towards refund of the part of the consideration the cheque was passed. The po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow have relied upon the fact that the summons in the complaint was sent on the same address as that of the notice and therefore, the notice which was returned unclaimed must be held to be served on the petitioner. This may not be strictly correct because in the complaint the petitioner was described as under: M/s. Kalpana Mines Minerals, Through its Proprietress, Smt. Kalpana Gawade Wife of Prakash Y. Mainkar. H. No. 852/2, Mainkar Niwas, Laxmi Nagar, Behind Indian Overseas Bank, Alto-Porvorim, Bardez, Ga - 403 521. 23. This is an additional reason why the impugned judgments cannot be sustained. For the foregoing reasons, I find that the impugned judgment of conviction and sentence recorded by the learned Magistrate and confirmed by the learned Sessions Judge will have to be set aside. 24. In the result the following order is passed: ORDER: (i) The Criminal Revision application is allowed. The impugned judgment passed by the learned Sessions Judge in Criminal Appeal No. 60/2013 and the judgment dated 10/4/2013 passed by the Judicial Magistrate First Class in Criminal Case No. 209/NIA/2010/D convicting the petitioner for the offence punishable unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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