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TMI Blog2023 (3) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... s awarded separately. Whereas, the Appellate Court i.e. City Civil Court, Mumbai set aside the conviction and acquitted the Respondent-Accused. 2. It is a settled law that compensation can be awarded from the amount of fine or it may be awarded independently without imposition of fine. So, if the fine is imposed, the compensation has to be awarded from the amount of fine only. It mean to say that the amount of compensation cannot be more than the amount of fine. If fine is not imposed, then compensation can be awarded without any restriction. These are the provisions incorporated in Sections 357(1) and 357(3) of the Code of Criminal Procedure, 1973 ["Cr.P.C."]. This has not been followed by the trial Court. In addition to that, an imprison ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were proved. Whereas, this judgment was set aside by the Appellate Court mainly for two reasons. Here we are concerned only with the reversal of observations of the trial Court by the Appellate Court. When there is a judgment of acquittal, normally, the Appellate Court do not interfere unless exceptional case is made out. But, in this Appeal, this rule is not applicable, particularly for two reasons. One is judgment of acquittal is reversed. Second is both the parties undertook the burden to prove on their shoulders. With this view in mind, the Appeal needs to be decided. Case in short 6. There was transaction of purchase and sale of plywood. Initially, Respondent purchased from partnership firm M/s. Western Plywood in which, Appellant wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment instructions were given in the year March-2004, the question of issuing cheques in the year 2005 does not arise. 10. The Appellant deposited all cheques in his bank Hindustan Cooperative Bank Ltd., Shivaji Nagar, Govandi Branch. All were dishonoured for the reason 'stop payment'. Their details are as follows :- Sr.No. Cheque No. Date of Cheque Amount of Cheque Reason for Dishonour (i) 189559 31/03/2005 Rs.1,00,000/- Payment stopped by drawer (ii) 116145 31/03/2005 Rs.50,000 Payment stopped by drawer (iii) 116146 01/04/2004 Rs.50,000 Payment stopped by drawer (iv) 116147 06/04/2005 Rs.50,000 Payment stopped by drawer (v) 116148 08/04/2005 Rs.50,000 Payment stopped by drawer 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OnLine Del 12578 14. I am not dealing with facts of individual cases, but the principles culled out are important. The law on the point of drawing of presumption and rebuttal of presumption is well settled. The presumption under Sections 118 and 139 of the NI Act were incorporated in the Act so as to enhance the reliability of negotiable instrument. On the basis of negotiable instruments, parties transfer the amount. Parties trust negotiable instruments. So, in order to boost it, these presumptions are incorporated in negotiable instrument. On one hand, there is a presumption attached to negotiable instrument and on the other hand, the drawer of the cheque is given liberty to rebut it. It is always a subject matter of challenge whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and there is no responsibility on the Appellant to prove the documents supporting sale of the plywood to the Accused. He went to the extent of contending that it is for the Respondents to prove that the plywood was not delivered to him. For that purpose, he relied upon the observations in above referred judgments. 18. Whereas, according to learned Advocate Shri.Tiwari for the Respondent-Accused, his client has made it clear explicitly in the notice reply about non receipt of the plywood and in fact, on this background, it was absolutely necessary for the Appellant to adduce evidence to show delivery of plywood. He submitted that the cheque books from which those cheques were issued was obtained from the two banks in the year 2003 and when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant to prove that the plywood was in fact delivered. He has failed to do the same. The facts of case of M/s. Prajapati Oil Industry (supra) can be differentiated. The conviction under Section 138 of NI Act was confirmed upto High Court. Though accused pleaded 'no receipt of goods as a defence', he could not substantiate it. The accused has not protested for non receipt of goods. Herein, Accused has stopped payment of cheques and also made his stand clear in notice reply. 21. In view of that, there is no legally recoverable debt or liability which has accrued in his favour. The Appellate Court was right in concluding that the Respondent has rebutted the presumption. Hence, no case for interference is made out. The judgment is well r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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