TMI Blog2022 (2) TMI 402X X X X Extracts X X X X X X X X Extracts X X X X ..... invoke presumption u/s.139 of N.I.Act, at least foundational facts about the liability have to be established by the complainant. The Trial Court has considered these aspects and by assigning reasons acquitted the accused. The complainant has not proved that the cheque was issued in respect of the legally enforceable liability. Considering the evidence before the Trial Court in the form of depositions of the witnesses and the documentary evidence, there are no reason to take a different view other than Trial Court - appeal dismissed. - Criminal Appeal No.1227 of 2006 - - - Dated:- 31-1-2022 - Prakash D. Naik, J. For the State-Appellant : Mr.S.R.Agarkar, APP For the Respondent : Mr.S.A.Kumbhakoni, Advocate JUDGMENT : 1. This appeal is preferred by the State of Maharashtra at the instance of Dairy Manager, Government Milk Scheme, Solapur under Section 378(3) of the Code of Criminal Procedure challenging the judgment and order dated 18th May 2006 passed by the Judicial Magistrate, First Class, Solapur in Summary Trial Case No.4999 of 2003. 2. The respondent was tried for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (`N.I.Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uirement to establish commission of offence u/s.138 of N.I.Act was not established. The demand notice was not proved. There is no reason to set aside the order of acquittal. 8. He relied upon decision of this Court in case of State of Maharashtra Vs. Kalpak Bhaskar Gadhave 2009-ALL M.R. (Cri.)-714 and Vandana Akhilesh Pandey Vs. Abhilasha Anil Pande 2018(4)-Bom.C.R. (Cri.)-774 . 9. I have perused the impugned judgment of Trial Court, the oral and documentary evidence. On scrutiny of evidence and the reasons assigned by the Trial Court, I do not find any reason to disturb the findings of Trial Court and the order of acquittal. The judgment is supported by cogent reasons which indicate that the Court has appreciated the evidence. 10. PW-1 Prakash Ramchandra Sontakke has deposed that he is the Dairy Manager, Government Milk Scheme, Solapur. The complainant is dairy manager of government milk scheme. The accused is an agent of complainant. He was collecting about 200- 300 ltrs of milk for sale purpose. There were dues of ₹ 1,00,000/-. The accused gave cheque of ₹ 1,00,000/- dated 10th March 2003 drawn on Janata Sahakari Bank Limited bearing cheque No.118039. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t-38. The intimation letter dated 24th March 2003 was marked as Exhibit-39. The intimation was addressed to Government Milk Scheme, Solapur. The document mentions that being unable to obtain payment of cheque for ₹ 1,00,000/- on Osmanabad Janata Sahakari Bank Limited for the reason given in the memo attached thereto, the amount has been debited to the account. The said document refers to the memo indicating the reasons for dishonour of the cheque, however, the memo has not been produced in the evidence. 12. PW-2 Suresh Dabhade filed affidavit-of-evidence (examinationin- chief) on 3rd February 2006. It is stated that milk was supplied to the accused. Bond was executed by him on 13th August 2002 stating that the dues towards milk supply would be paid regularly. The bond was signed by accused in his presence. He is the signatory to the bond. In the cross-examination he stated that he has worked as Supervisor in the Milk Dairy for Taluka Barshi. The correspondence is required to be given with inward number. On the letter Exhibit-45 there is no inward number. It is not mentioned in the affidavit where and on which date the accused gave letter Exhibit-45. It is mentioned in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque number, amount is not mentioned. There were discrepancies in the letter issued by the complainant and the evidence of witnesses about the liability of accused which creates doubt. The memorandum regarding dishonour of cheque and/or reason for which the cheque was dishonoured, is not part of proceedings. Several vital documents relating to the supply of milk or the dues were not part of proceedings. To invoke presumption u/s.139 of N.I.Act, at least foundational facts about the liability have to be established by the complainant. The Trial Court has considered these aspects and by assigning reasons acquitted the accused. 15. The cheque was not deposited on the date reflected on the cheque. There was variation in the ink and the handwriting appearing on the cheque. Ingredients to constitute the offence u/s.138 of N.I.Act were not established. Defense of the accused is that the amount of ₹ 1,00,000/- was not outstanding against him. While executing the agreement between the complainant and the accused, two blank cheques were obtained by the complainant as security. The accused was the agent of complainant. The judgment of Trial Court observes that Exhibit-39 refers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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