2019 Supreme(Bom) 874

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Dama Seshadri Naidu, J.
Doshi Brothers – Appellant
Versus
State of Maharashtra – Respondent
Criminal Appeal No. 657 of 2018
Decided On : 23-07-2019

Headnote:

Criminal Procedure Code, 1973 – Sections 313, 200, 385 – Negotiable Instruments Act – Sections 138, 142 – Partial discharge of the Companys debt – Dishonour of a cheque – Appellant Brothers is a proprietary concern – Through its proprietor, BC Doshi, it filed a private complaint against M/s. Sai Wire Products and its director Mustafa Mohammadhussain Sial the 2nd and 3rd respondents respectively. – Sial, as the co-signatory of the cheque, is said to be looking after the Companys day-to-day affairs. – Doshi, the sole proprietor, claims to have business relations with the Company. – He further claims that, as part of their continued business transactions, he supplied goods to the Company and received cheques, signed by Sial and another, for the partial discharge of the Companys debt. – Cheques dishonoured, Doshi filed CC before the Metropolitan Magistrates Court, Bandra, Mumbai. – Eventually, on merits, the trial Court, through its judgment, dismissed the case and acquitted the Company and Sial. – Aggrieved, the proprietary concern, through Doshi as its proprietor, filed this appeal. – Held, Trial Court has accepted that the Company admitted the "issuance of subject cheques" and the "signature of the accused on these cheques." – Then, it went on to observe that notably the complainant has produced no document to prove that the alleged goods were sold and delivered to the Company. – So "the defence taken by the accused persons appears to be natural and probable one." – It has finally held that Doshi, in his evidence, gave the details of the alleged transaction. – Yet "neither any Register nor any book of accounts is produced on recorded to show the details as such the date of delivery of goods, quality, quantity and rate of the said goods, the mode of delivery of these gods etc." – Court is afraid the trial Court has remained oblivious of the statutory presumptions under Sections 118 and 139 of the NI Act. – The Company has led no direct evidence, nor does, of course, law compel it to. – Then, to rebut, it must have exposed the flaws in the complainants case. – Has it done so? – To put this issue in perspective, first, let me observe that after admitting that it ordered steel, the Company has never denied its liability on the ground that it had not received the goods. – The best, if not the earliest, opportunity it had was when it received the statutory notice. – It remained quiet. – Second, the Company has not given the cheques transaction-wise. – It has a running account. – It received the statement of account, checked it, and accepted it. – Third, keeping aside everything else, Doshi can latch on to the statutory presumption under Section 139 that the cheques were given for the discharge of a legally enforceable debt. – It must have been the Companys turn to rebut it. Wishing away a presumption is no rebuttal; neither is a bald denial. – Trial Courts observations that Doshi has not produced the records to prove that it had supplied the goods and that he has not examined the accountant carry no conviction. – If Doshi had to prove the whole transaction from the scratch merely because the Company denied having received the goods, the statutory presumption pales into oblivion. And Section 139 of NI Act stands entirely ignored. – Even otherwise, from the records it is evident that getting the cheques dishonoured is nothing new for the Company vis--vis Doshi. – In the statement of account, there were instances recorded that the Company gave cheques but did not honour them. – To illustrate, Companys cheque was returned unpaid; so was – In fact, the bankers endorsement reads "dont present again," an endorsement usually reserved for its customers whose dishonouring of cheques is repetitive. – Company has heavily relied on Sachin Food Processor. In that case, the complaint alleged that the respondent purchased broiler chicken and issued a cheque for discharging his liability. – Trial Court disbelieved the complainants version and acquitted the respondent. On appeal, this Court has noted on facts that in his cross examination, the complainant has "admitted that he has not supplied broiler chicken to respondent" on the material day. – He has further admitted that the "dates of supply of broiler chicken mentioned in the complaint are incorrect dates." – In his cross examination, the complainant has also admitted that he has not supplied the goods to respondent on other dates, too. – He did admit that he had "not placed any document about demand of broiler chicken by the respondent from him" – Court in Sachin Food Processor has confirmed the respondents acquittal. – Court is afraid that case can have no precedential impact on this case. – Appeal Allowed