IMPORTANT POINT
Where there was no liability on the date post dated cheque was issued and liability was in dispute when cheque was presented, order of acquittal of offence of dishonour of cheque was not liable to be interfered with.

Tahilramani V.K. (Smt.), J. —The applicant original complainant has preferred this application for leave to file appeal against the judgment and order dated 9.11.2007 passed by the learned Metropolitan Magistrate, 27th Court, Mulund, Mumbai in Case No. 70/S/ 1998. By the said judgment and order, the learned Magistrate has acquitted the respondent No.2 accused of the offences under Section 138 of Negotiable Instruments Act.

2. I have heard the learned Advocate for the complainant. I have perused the evidence which has been produced

by him as well as the judgment and order.

3. The case of the complainant is that he had supplied the cloth of about 30,000 meters to the accused and cheques in question were issued in respect of purchase of the said cloth. As the said cheques were not honoured, complaint came to be filed. The total amount of cheques in question is Rs. 2,00,0000.

4. The defence of the accused is that though he received the cloth, the said cloth was found to be defective. Hence, he asked the complainant not to deposit the said cheques for clearance unless the issue of defective cloth is settled. However, the complainant presented the cheques which were subsequently dishonoured. The further case of the accused is that on the request of complainant, he had used defective material to prepare ready-made garments. He has exported the consignment which was returned because there was defect in the cloth supplied by the complainant.

5. The complainant has denied that he supplied defective cloth. However, it is pertinent to no the admission of the complainant in his cross-examination wherein he has stated that he received goods worth Rs. 25,000 back from the accused. Such admission on the part of the complainant bears out the case of the accused that defective goods were supplied by the complainant to the accused, Moreover, from the evidence of D2 Suryakant Sawant it is seen that the consignment of ready-made garments which was exported by the accused, was returned back because of the defect in the cloth. This admission of the complainant and the evidence of DW2 Suryakant corroborate the defence of the accused that defective cloth was supplied to him by the complainant.

6. The accused had requested that the said cheques should not be presented till the dispute regarding the faulty material was settled. At the time when the cheques were deposited by the complainant in the bank, the issue regarding faulty material had not been settled. On the basis of these facts, the learned Magistrate held that there was no liability of payment of amount by the accused to the complainant on 19.11.1996 when the post dated cheques were drawn in favour of complainant. Looking to the evidence on record, I am of the opinion that the view taken by the learned Magistrate is a reasonable and possible view.

7. It is well settled that if the view of acquittal could have been reasonably arrived at then the mere circumstance that the Appellate Court would have taken a different view, would be no ground to interfere. In this connection, there is no dearth of authorities but to eschew prolixity, I am referring to only two of them i.e Khedu Mohton and Ors. v. State of Bihar1 and C. Anthony v. K.G. Raghavan Nair.2 In the case of C. Anthony, the Supreme Court has observed that unless the findings of the trial Court are perverse or contrary to the material on record, the High Court cannot in appeal substitute its finings; merely because another contrary opinion was possible on the basis of material on record.

8. As stated earlier, the view taken by the learned Magistrate is a reasonable and possible view, hence, no interference is called for. Appeal dismissed.

*******