TMI Blog2020 (11) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... versing the judgment of acquittal, the Appellate Court can reverse the finding of the trial Court if the reasoning given by the trial Court is perverse and if the material on record is not considered by the trial Court which are available and there is some mistake apparent on the record, then only the Appellate Court can reverse the finding - there are no error committed by the trial Court or there is any perversity or non-consideration of material available on record. The Appeal is dismissed - Registry is directed to pay an amount of ₹ 3,000/- as honorarium to the learned Amicus Curiae appearing for respondent. - CRIMINAL APPEAL No.15/2011 - - - Dated:- 25-11-2020 - HON'BLE MR. JUSTICE H.P. SANDESH Appellant (By Sri R. Ramesh, Advocate) Respondent (By Sri D. Nagaraja Reddy, Amicus Curiae) JUDGMENT This appeal is filed by the complainant/appellant challenging the judgment of acquittal passed in C.C.No.37271/2006, dated 15.10.2010, by the learned XV Addl. Chief Metropolitan Magistrate, Bengaluru City (hereinafter for brevity referred to as `trial Court ). 2. The parties are referred to in their original ranking as complainant and accused in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by examining himself and hence such being the case, the trial Judge ought not to have acquitted the accused. It is the further contention of the appellant that the trial Judge has also committed an error in its judgment by non-appreciating the Ledger account produced at Ex.P-16 by the complainant relating to the liability towards the cheque in question. The trial Court has committed an error in comparing the contents of Ex.P-5 the cheque in question in the absence of defence of the accused as the latter has not entered into witness box. Learned counsel for the appellant further contended that the cheque in question was issued as a security to the materials to be supplied by the complainant. Learned counsel also vehemently contended that the trial Judge has not considered Ex.P-16, which clearly reflects that the accused was maintaining a running account. In spite of Ex.P-16 produced before the Court, the trial Judge has committed an error. 6. Per contra, learned Amicus Curiae appearing for the respondent/accused would submit that, first of all PW-1 was not having any power to come and depose before the Court as he was not having any resolution passed by the Company permitting h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their employees. He also admitted that if the goods are sent through Lorry, they also used to get the receipt for having supplied the goods. It is suggested that the goods mentioned in Ex.P-4 are not supplied to the accused, the said suggestion was denied by the witness. PW-1 also claims that PW-2 gave GPA in favour of him and he cannot tell for what purpose the said GPA was given. It is elicited from PW-1 that he was working in the complainant- Company as Accounts Manager from last seven years and he also admits that he is not having any personal knowledge in respect of the transaction between the complainant-Company and the accused. 10. The complainant also examined PW-2, who is the Managing Director of the complainant-Company and through him, documents from Exs.P-16 to P-18 were got marked. He was also subjected to cross-examination and he admits that there was no resolution permitting PW-1 to give evidence before the Court and in order to give Power of Attorney in favour of PW-1, the Board of Directors of the Company have not passed any resolution. He also admits that, at one time, the accused had returned the goods which have been supplied. He also admits that Ex.P-3 xero ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Travels and they have not produced any document for having handed over the goods to Sugama Travels and also the Sugama Travels delivered the goods in favour of the accused. The learned counsel for the appellant would submit that a xerox copy was produced, but the Court cannot rely on a xerox copy and also, no person belonging to Sugama Travels was examined in order to show that they went and delivered the goods in favour of the accused. The accused categorically denied the supply of the goods. 13. No doubt, the complainant-Company has given the legal notice and the same was served on the accused and accused has not given any reply to the notice. No doubt, the Hon ble Supreme Court in Rangappa vs- Mohan, reported in (2010) 11 SCC 441 , has categorically held that when the notice was issued and when the cheque was not disputed and if the accused fails to give any reply, the Court can draw the presumption under Section 139 of N.I.Act. It is also settled law that if the cheque is not disputed and no reply is given, the Court can draw presumption under Section 139 of N.I.Act. But, in the case on hand, the very claim of the complainant is that the goods were supplied in terms of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mouth of PW-2 and when the accused disputed the very supply of goods to the amount mentioned in Ex.P-5, the complainant failed to prove the fact that material was supplied in terms of Ex.P-4. 15. The trial Judge taking note of the proof for not having supplied the goods in terms of Ex.P-4 and also taking note of the admission elicited from the mouth of PW-2 that they used to collect blank cheques from the accused before supplying the goods on credit basis, comes to a conclusion that the cheque which was collected earlier was used for filing this case. 16. Having considered the material on record and also the reasons assigned by the trial Court in coming to the conclusion that the complainant failed to prove its case by placing material before the Court for having supplied the goods which are mentioned in Ex.P-4, I do not find any error committed by the trial Court in holding that the complainant has failed to prove its case and that preponderance of probabilities are made out by the accused by effectively cross-examining PWs.1 and 2 and eliciting the answers from the mouth of PWs.1 and 2 and no documents are placed before the trial Court for having supplied the goods in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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