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TMI Blog2021 (12) TMI 274X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant) was that it being a partnership firm, had entered into a contract with the applicant no. 1. The contract pertained to supply of iron ore by the applicant no. 1 to the respondent (complainant). In terms of the contract, applicant no. 1 was supposed to supply iron ore of a particular quality, and the rates of payment for such supply of iron ore were fixed in terms of the contract. There was an arbitration clause in the said contract. 3. The respondent asserted that it made payments on different dates by issuing cheques in favour of applicant no. 1 towards advance payment for supply of iron ore. Three payments were made by way of cheques and cash amount of Rs. 50,000/- was paid. According to the respondent, total amount of Rs. 12,70,000/- was paid to the applicant no. 1 for the supply of iron ore. 4. It was further the case of the respondent that the applicants supplied only 1500 metric tonnes of iron ore and that too on analysis was found to be of low grade. In these circumstances, when the respondent approached the applicants with the grievance that they had failed to abide by the terms of the contract, the applicants agreed to repay the advance amount paid by the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent application on 7.9.2015 and today the application has come up for final hearing. 9. Mr. Singbal, learned counsel appearing for the applicants submitted that although written submissions were filed before the Sessions Court during the pendency of the appeal, the opportunity to advance oral arguments was not granted to the applicants. In this context, the learned counsel for the applicants referred to the roznama of the Sessions Court and also an affidavit of one of the partners of the applicant no. 1 firm to contend that no opportunity of advancing oral arguments was given to the applicants, thereby vitiating the impugned judgment and order dated 19.3.2015, passed by the Sessions Court. 10. It was further submitted that the order passed by the Magistrate in the present case suffered from lack of territorial jurisdiction and that therefore, the conviction and the sentence imposed upon the applicants was unsustainable, which the Sessions Court failed to appreciate. It was further stated that the complaint was deliberately filed by the respondent before the Magistrate at Bicholim, while the said Magistrate had no territorial jurisdiction in the matter. This was done only to hara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts below, the scope of interference is limited. It was submitted that a perusal of the impugned judgment and order would show that the applicants had failed to make out a case for exercise of revisional jurisdiction in their favour. It was further submitted that on the aspect of lack of opportunity to the applicants to present oral arguments before the Sessions Court, a perusal of the roznama and the impugned judgment and order of the Sessions Court would show that the Counsel representing the applicants was indeed heard and that there was no scope for the applicants to raise any grievance in that regard. It was submitted that the affidavit filed by one of the partners of applicants no. 1 firm disputing the contents of the roznama of the Court and the contents of the impugned judgment and order of the Sessions Court cannot be looked into and therefore, there is no substance in the aforesaid submission. 13. As regards the submission pertaining to territorial jurisdiction, it was submitted that there was no substance in the same in the context of the position of law as it existed on the date the complaint was filed. It was further submitted that even in the judgment rendered by thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicants. Nonetheless, if the applicants are able to demonstrate that the findings rendered by the two Courts below are erroneous, perverse and wholly unsustainable, the impugned judgments and orders can certainly be interfered with. 16. A perusal of the material on record shows that in terms of the aforesaid contract executed between the parties, the applicants firm was supposed to supply iron ore of a particular quality to the respondent and that the respondent was supposed to make payment at the agreed rate to the applicants. As to whether the iron ore was of the quality as agreed between the parties, there was a term in the contract providing for analysis of the iron ore. There is no dispute about the fact that the respondent paid total amount of Rs. 12,70,000/- as advance to the applicants for supply of iron ore in terms of the aforesaid contract. It is a fact admitted by applicants in their evidence before the Magistrate. It is the case of the applicants that they had supplied 1500 metric tonnes of iron ore to the respondent in the first instance and thereafter, they supplied 1500 metric tonnes more to the respondent in terms of the contract. 17. On the other hand, the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the applicants in the backdrop of the dispute that has arisen. Nowhere did the applicants in their reply to the complaint or in the stand taken before the Magistrate and even in the evidence led before the Magistrate raise any defence other than claiming that the subject cheques had been forcibly taken from one of the partners of the applicants no. 1 firm and that the signature of the second partner was forged. 21. Even the said stated defence on behalf of the applicants was not supported by any evidence on their behalf. No material was placed on record to support that such an alleged incident had ever taken place where there was repeated harassment to the partners of the applicant no. 1 and their families and that on that particular date the subject cheques were forcibly taken from one of the partners. The assertion as regards forged signatures of the second partner of the applicant no. 1 firm was also not supported on behalf of the applicants by placing on record any evidence or material. 22. It is in this backdrop that the Magistrate appreciated the oral and documentary evidence on record. It was analyzed as to whether the presumption that arises in such cases under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon which the learned counsel appearing for the applicants has placed much reliance, pertains to the position that the Court cannot insist upon a person to lead negative evidence. The said sentence is sought to be read out of context. A proper appreciation of the facts before the Hon'ble Supreme Court would show that in the said case it found, as a matter of fact, that the High Court had erred in insisting upon the accused to prove negative evidence. In the present case, the facts are completely different and said judgment is not applicable. 26. In so far as the judgment of this Court in the case of M/s. Jinarj Paper Udyog Vs. M/s. Dinesh Associates (supra) is concerned, it pertains to the question of territorial jurisdiction. It was a judgment rendered way back on 23.10.2008, before the Judgment of the Hon'ble Supreme Court in case of Dasharath Rupsingh Rathod Vs. State of Maharashtra and anr. (supra) was rendered. Before the aforesaid judgment of the Hon'ble Supreme Court rendered in Dasharath Rupsingh Rathod Vs. State of Maharashtra and anr. (supra), the earlier judgment in the case of K. Bhaskaran Vs. Sankaran Vidhyan Balan and another, (1999)7 SCC 510, was holdin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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