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2021 Supreme(Bom) 1339
IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR
R.B. Deo, J.
Industrial Fuel Consultants - Appellant
Versus
Laxman Sharma - Respondent
Criminal Appeal 289 of 2007
Decided On : 12-10-2021
Radhika Bajaj, for the Appellant / N.B. Bargat, for the Respondents
The necessity of material evidence to prove the supply of goods and the burden on the accused to rebut the presumption under section 139 of the Negotiable Instruments Act, 1881.
Headnote:
Negotiable Instruments Act - Challenging Acquittal under Section 138 - 1881 - [Section 138 of Negotiable Instruments Act, 1881] - The court discussed the presumption under section 139 of the Act, the burden of proof on the accused to rebut the presumption, and the necessity of material evidence to prove the supply of goods in cases of cheque dishonor. The defense of misuse of cheque was also considered and found to be probable.
Fact of the Case:
The appellant, a complainant in a criminal complaint, challenged the judgment acquitting the respondent accused of an offense under section 138 of the Negotiable Instruments Act, 1881. The complaint lacked material particulars and evidence regarding the supply of goods and payment, leading to the acquittal of the accused.
Finding of the Court:
The court found that the complainant failed to prove the supply of goods and the existence of an enforceable debt, and the defense of misuse of the cheque by the accused was probable. It emphasized the necessity of material evidence to convict based on the presumption under section 139 of the Act.
Issues: Lack of material particulars in the complaint, failure to prove supply of goods and enforceable debt, and the defense of misuse of the cheque.
Ratio Decidendi: The presumption under section 139 of the Act is triggered in cases of dishonor of cheques, but it is rebuttable. The accused must create a reasonable doubt to rebut the presumption. Material evidence is necessary to prove the supply of goods in such cases.
Final Decision: The appeal was dismissed, and no interference was made in the judgment of acquittal.
JUDGMENT
R.B. Deo, J. - Heard Mrs. Radhika Bajaj, the learned counsel for the appellant and Mr. N.B. Bargat, the learned counsel for the respondent.
2. The appellant, who is original complainant in Criminal Complaint 1813/1999, is challenging the judgment dated 7.9.2016, rendered by Judicial Magistrate First Class, Nagpur, whereby the respondent accused is acquitted of offence punishable under section 138 of Negotiable Instruments Act, 1881 (“Act” for short).
3. The complainant is the sole proprietor of M/s. Industrial Fuel Consultants. He instituted complaint under section 138 of the Act, the gist of which is thus:
The accused deals in coal under the name and style “Ravi Coal Depot”. The complainant supplied coal to the accused from time to time and while the accused paid some sum, some remained unpaid. Towards the payment of the unpaid amount, the accused issued cheque drawn on Bank of Maharashtra, Dharampeth Branch, dated 3.8.1999, bearing Number 082565, which was dishonoured for want of sufficient funds. The complainant issued notice, which was duly served, the accused did not make the payment within the statutorily prescribed period and an offence punishable under section 138 of the Act is committed.
4. The striking feature of the complaint is that every material particular is conspicuously missing. The complaint is blissfully vague. The complaint does not disclose when was the coal supplied, where was the delivery made, what was the quantity of coal supplied etc. The complainant stepped into the witness box and the affidavit in lieu of examination-in-chief is obviously as vague as the complaint.
5. In the cross-examination of the complainant, it is extracted that the complainant is an income tax payee. The complainant asserts that the outstanding amount is reflected in the balance sheet concerning the relevant period, which he can produce on record. The complainant admits to have purchased steam coal from Western Coalfields Limited (“WCL”) and that a licence is required for such purchase. The complainant admits that he did not have the requisite licence. The complainant then claims to have purchased the coal from the open market. Pertinently, the complainant admits that he is not in a position to disclose when and what quantity of coal he supplied to the accused nor can he disclose the amount received from the accused and the dates of the receipt. It is extracted in the cross-examination, that it was the accused, who held the requisite licence to purchase coal from WCL and that whenever the complainant purchased coal from WCL for the accused, it was the accused, who gave complainant demand draft. It is further admitted that to save time to obtain the demand draft, the accused opened bank account at Nagpur. The complainant denies the suggestion that blank cheques duly signed were given to him by the accused to facilitate obtaining the demand draft. The complainant denies the suggestion that he misused one such cheque since the accused terminated his agency.
6. The learned Magistrate was pleased to acquit the accused inter alia recording a finding that the complainant failed to prove that he was engaged in purchase and sale of coal. The learned Magistrate noted that the complainant was not in a position to disclose the quantity of coal allegedly supplied to the accused, or the amount paid by the accused and the balance due. The learned Magistrate noted that the complainant did not place on record any material to prove that there was a sale and purchase transaction pursuant to which the complainant supplied coal to the accused. The complainant found the defence of the accused, as is discernible from the cross-examination, probable and held that the complainant did not prove that the cheque was issued towards existing and enforceable debt.
7. The learned counsel for the complainant Mrs. Radhika Bajaj would submit that the learned Magistrate fell in serious error in not appreciating that since the accused did not deny his signature o
