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2007 DIGILAW 226 (CAL)

S. N. DABHOLKAR v. DUROPLUS INDIA PVT. LTD.

2007-03-27

PARTHA SAKHA DATTA

body2007
P. S. DATTA, J. ( 1 ) THE judgment and order dated 17. 07. 2004 passed by the learned additional Sessions Judge, 7th Fast Track court, Bichar Bhawan, Calcutta in Criminal appeal No. 9 of 2003 confirming thereby the judgment and order of conviction and sentence passed by the learned Metropolitan Magistrate, 14th Court, Calcutta in Case No. 1194/99 under Section 138 of the Negotiable Instruments act against the petitioner said to be the proprietor of M/s. Dabholkar Enterprises is the subject matter of challenge in this revisional application. ( 2 ) BEFORE the learned Chief Metropolitan magistrate the opposite party/complainant lodged the complaint alleging that pursuant to the order placed by the petitioner (accused) the complainant (o. p.) supplied materials and raised a bill dated 17. 07. 1997 worth Rs. 2,47,962. 54 P. which the accused assured the complainant of payment. Thus, towards discharge of liability the accused issued two cheques one dated 18. 12. 1998 for Rs. 50,000/- and another dated 28. 01. 1999 for rs. 50,000/- drawn on Dena Bank, Margao, goa. The cheques were deposited on 06. 02. 1999 but were returned dishonoured by a memo, dated 15. 02. 1999 with the remarks "exceed arrangements". The complainant received the intimation about the dishonour of cheques from his banker, Bank of Baroda, Burrabazar Branch, Calcutta on 1. 3. 1999. Demand notice follwed on 8. 3. 1999 and it was received by the accused on 15. 03. 1999. Accused sent a reply through his advocate on 22. 3. 1999 admitting the liability but payment was not made. ( 3 ) LEARNED Metropolitan Magistrate, 14th court, Calcutta by his judgment and order dated 26. 09. 2002 convicted the petitioner under Section 138 of the N.. Act and sentenced to suffer rigorous imprisonment for six months and to pay a compensation Rs. 2,00,000/ -. ( 4 ) THE petitioner preferred an appeal against the judgment of conviction and sentence and in Criminal Appeal No. 9 of 2003 learned Additional Sessions Judge, 7th Fast track Court, Bichar Bhawan, Calcutta dismissed the appeal and confirmed the judgment and order of coviction passed by the learned Metropolitan Magistrate, 14th Court, calcutta in Case No. C-1194/99 corresponding to T. R. No. 172 of 1999. ( 5 ) THE case of the defence is one of exaggerated bills towards the goods supplied which did not correspond to the liability. ( 5 ) THE case of the defence is one of exaggerated bills towards the goods supplied which did not correspond to the liability. According to the defence the cheques were given in advance and the complainant company presented the cheques with mala fide motive soon after the raising of the bills and price of the goods was charged more than the usual price of the products. By using the cheques the complainant took away the right of the accused as a businessman to bargain and settle his disputes and differences in respect of the excess billing made by the complainant company. There was continuous business transactions between the complainant company and the accused from the 1993 to 1998 and the said business was to the tune of rs. 26,85,586/ -. ( 6 ) BEFORE the learned Magistrate the complainant examined three witnesses while the petitioner got himself examined as D. W. 1. ( 7 ) ISSUANCE of two cheques by the accused - one dated 28. 12. 1998 for Rs. 50,000/- and the other dated 28. 01. 1999 for a similar amount of Rs. 50,000/- is a matter of fact. That there was business transactions between the parties admits of no dispute. As per evidence of P. W. I Ajoy Kumar Pal, the manager of Bank of Baroda, Burrabazar branch the two cheques were dishonoured on the ground "exceed arrangements". Advice memo has been marked as ext. 1 P. W. 2 is one Manish Mohata who on being authorized by the complainant company instituted the case against the accused. He said that the complainant company supplied plastic molded furniture to the accused on 17. 07. 1997 per challan of the even date (Ext. 7 ). The goods were consigned in favour of the accused company and the petitioner himself received the goods. Receipt on goods by the accused has not been disputed. According to the evidence of P. W. 2 the two cheques were issued by the accused towards discharge of legal liability,. e. , towards payment of the price of goods in terms of the bill being No. E/198/97-98 dated 17. 7. 1997. Issuance of demand notice, acceptance of the demand notice, and the reply made by the accused to the complainant admitted of no dispute. In the reply dated 22. 3. 1999 (ext. e. , towards payment of the price of goods in terms of the bill being No. E/198/97-98 dated 17. 7. 1997. Issuance of demand notice, acceptance of the demand notice, and the reply made by the accused to the complainant admitted of no dispute. In the reply dated 22. 3. 1999 (ext. 13) it was communicated to the complainant company that the accused was interested to settle the matter amicably by making payment and thereby despatched a detailed statement of accounts on 16. 03. 1999. In the reply it was stated that there was a difference of substantial sum towards other total dues payable by the accused to the complainant besides 'the amount claimed' as reflected in the complainant's statement dated 22. 3. 1998. In the reply it was further alleged that in course of business transaction the accused issued some post-dated cheques with a mutual understanding that the complainant would present the cheque before his banker with prior confirmation from the accused as regards the availability of funds. It was further stated that the accused was intending to dear up the entire dues along with the present amount claimed' within a period of one year due to economic recession. And accordingly it was requested not to take recourse to legal action. The accused in course of his evidence as DW 1 proved detailed statement of purchasers worth Rs. 26,85,586/- during the period from 1993 to 1998 (ext. A ). Exhibit B is a statement of purchases of plastic chairs from the "trend molded furniture", Calcutta between 4. 5. 1993 to 9. 1. 1997. Now, it is noticeable that the grounds raised in the revisional application to the effect that there was no legal liability on the part of the accused to make payment towards goods delivered because of exaggerated bills has not been taken as a part of defence through cross-examination of P. W. 2 who filed the petition of complaint on behalf of the complainant company. The accused company did not deny issuance of reply to the demand notice (ext. 13) wherein it was clearly categorically averred that the accused was intending to clear all the dues along with the present amount claimed'. The present amount claimed' means the claim of Rs. 1,00,000/- as per the bill dated 17. 07. 1997. In the letter (ext. The accused company did not deny issuance of reply to the demand notice (ext. 13) wherein it was clearly categorically averred that the accused was intending to clear all the dues along with the present amount claimed'. The present amount claimed' means the claim of Rs. 1,00,000/- as per the bill dated 17. 07. 1997. In the letter (ext. 13) it was not at all alleged that the bills were exaggerated for which the complainant was not eligible to receive sum of Rs. 1,00,000/ -. Nor was it stated in the reply nor was it suggested to P. W. 1 in cross-examination that the cheques were given post-dated with a mutual understanding that after having received confirmation from accused they would present the cheques for encashment. Business transaction worth Rs. 26,85,586/- during the period from 1993 to 1998 as is shown through ext. A does in no way help the defence; on the contrary it proves the case of the complainant that the complainant supplied goods as per the bills dated 17. 07. 1997 for Rs. 1,00,000/- and admittedly the accused had received the goods but declined payment. It has come out from evidence of D. W. 1 the petitioner that there was some dispute in the rate of goods and the complainant company has given excess rate. This defence which was not put to the prosecution witnesses can in no way negative the presumption arising out of Section 139 of the N.. Act. From oral and documentary evidence it has sufficiently transpired that on account of consignment and delivery of goods in favour of the accused the accused was under legal obligation to pay the debt. The evidence of D. W. 1 that as there was dispute he was not liable to make any payment cannot be accepted. In cross-examination D. W. I has stated that he never wrote any. letter to the complainant company regarding his objection for excess charging of prices. The accused admitted his reply in (ext. 13) wherein no such dispute as to rate of goods or of exaggerated bills or of his having no liability to pay was ever raised. ( 8 ) LEARNED Advocate for the accused/petitioner submitted that the complainant initiated separate proceedings on account of bouncing of other cheques instead of filing one single case. The accused admitted his reply in (ext. 13) wherein no such dispute as to rate of goods or of exaggerated bills or of his having no liability to pay was ever raised. ( 8 ) LEARNED Advocate for the accused/petitioner submitted that the complainant initiated separate proceedings on account of bouncing of other cheques instead of filing one single case. ( 9 ) LEARNED Advocate for the petitioner takes me to the decision in M. S. Narayana menon Alias Mani v. State of Kerala and Anr. to argue that where through evidence the accused has sought to rebut the presumption by raising a bona fide dispute as to the amount of debt payable it has become the duty of the complainant to prove his case which he has failed. Having gone through this judgment it appears that the facts in the case were of a different nature where the complainant did not produce books of accounts so as to settle the correctness of the account as per ext. (p10 ). Here in this case neither in his reply to the demand notice (ext. 13) nor in course of cross-examination of witnesses of the complainant the accused did put forward his case that there was dispute as to the rate of goods or that there was excess charging. It is only in his evidence that the accused comes with a plea that there was dispute as to the rate of goods. Accused in his cross-examination has stated that at no point of time even before he adduced evidence in court he ever raised any objection as to the price. Therefore, such a plea cannot be said to have been proved. Through (ext. B) the accused intended to show that between 4. 5. 1993 and 9. 1. 1997 the rates of per chair was between Rs. 270/- to Rs. 350/- and the company sold the chair at Rs. 243/ -. By this statement-sheet nothing is proved so far as the instant case is concerned. The instant business transaction was of 17th July, 1997 where at first glance it appears that the rate per chair was fixed at Rs. 216/- by the complainant. The complainant did not adduce any evidence at all as to what should be the rate of chair in the place of Rs. 216/ -. The instant business transaction was of 17th July, 1997 where at first glance it appears that the rate per chair was fixed at Rs. 216/- by the complainant. The complainant did not adduce any evidence at all as to what should be the rate of chair in the place of Rs. 216/ -. It is noticeable that the alleged dispute as to the rate of chair did not relate to the instant transaction but to the previous transactions that took place between 1993 to 9. 1. 1997 and it is not the case of the d. W. 1 in his evidence that the instant transaction for which the case has been filed the rate of chair was excessive of exorbitant. ( 10 ) LEARNED Advocate for the o. ps. referred to the following judgments: 1. K. Bhaskaran v. Sankaran vaidhyan Balan and Anr. 2. Hiten P. Dalal v. Bratindranath banerjee. 3. K. N. Beena v. Muniyappan and Anr. 4. M/s. M. M. T. C. Ltd. and Anr. v. M/s. Medchl Chemicals and pharma P. Ltd. and Anr. 5. Goa Plast (P) Ltd. v. Chico Ursula d'souza. ( 11 ) IN the case of K. Bhaskaran (supra) the proposition was laid that under Section 118 and under Section 139 presumption has to be rebutted through evidence. In Hiten Dalal's case (supra) it has been held that the presumption has to be rebutted by proof and not by mere explanation which is merely plausible. In Goa Plast case (supra) it was held that on the faith of payment by way of a post-dated cheque the payee alters his position by accepting the cheque and if stoppage of payment before the due date of the cheque is allowed to take the transaction out of the purview of Section 138 of the Act it will shake the confidence which a cheque is otherwise intended to inspire regarding payment. Having considered the evidence on record it does not at all appear that so far as the instant transaction is concerned the accused has been able to disprove the presumption of legally enforceable liability. ( 12 ) IN the circumstances, the revisional application fails and is dismissed. The judgment and order of the learned Additional Sessions judge, 7th Fast Track Court, Bichar Bhawan, calcutta in Criminal Appeal No. 9 of 2003 is affirmed. ( 12 ) IN the circumstances, the revisional application fails and is dismissed. The judgment and order of the learned Additional Sessions judge, 7th Fast Track Court, Bichar Bhawan, calcutta in Criminal Appeal No. 9 of 2003 is affirmed. ( 13 ) LET each copy of the judgment and order be sent to the learned Additional sessions Judge, 7th Fast Track Court, Bichar bhawan, Calcutta and the learned metropolitan Magistrate, 14th Court, Calcutta for information and necessary action. ( 14 ) CRIMINAL Section is directed to supply the urgent Xerox certified copy of this judgment to the learned Advocates for the parties as early as possible. Revision dismissed. .