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2013 DIGILAW 1711 (BOM)

Rakesh Chajjer v. State of Maharashtra

2013-08-23

SADHANA S.JADHAV

body2013
JUDGMENT This is an application seeking leave to appeal against the acquittal of the present respondent in C.C. No. 6529/SS/2010 passed by Metropolitan Magistrate, 63rd Court, Mumbai vide Judgment and Order dated 06/03/2012. The applicant herein is the original complainant. 2. It is the case of the complainant that the present respondent i.e. original accused had induced the complainant to supply plywood and hardware materials for the saloon of the accused called "Hair Spa" in the month of March-April 2010 and the bill of Rs.1,74,000/- remained unpaid. The accused had issued 3 cheques with an assurance to the complainant that they would be honored. The cheques were dishonored on account of "Funds Insufficient". The complainant then issued a demand notice through an Advocate calling upon the accused to pay the amounts mentioned on the dishonored cheques within 15 days. The notice was received by the accused on 30/10/2010. The notice was dispatched on 28/11/2010 and were received by the accused on 30/11/2010. The notices could not be served as there were remark "Not known" of one of the addresses. The notice which was sent on other addresses were duly received. The applicant thereafter filed a complaint in the Court of 63rd Metropolitan Magistrate, Mumbai. By Judgment and Order dated 06/03/2012, learned Metropolitan Magistrate had dismissed the complaint. The grounds assigned for dismissal of the complaint were as follows. i) The demand notice was also sent to the friend of respondent no. 2, Bharti Shah. ii) The bills for the purchase of the goods were not produced by the applicant and hence the complainant had not proved that the cheques were issued towards legally enforceable debt. Hence this application seeking leave to appeal. 3. The counsel for the applicant submits that in fact the respondent no. 2 herein was an account holder of the firm "Hair Spa" which is in her maiden name Sangita Chalwad. It is further submitted that the respondent no.2 herein has admitted before the Court that she was in fact residing with Bharti Shah and giving cheques to her friend Bharti Shah. The demand notice was sent to Bharti Shah for the purpose of keeping her posted that a notice was sent to the respondent no. 2. It was necessary to send a notice to Bharti Shah as she had accompanied respondent no. 2 to the shop for the purchase of materials. The demand notice was sent to Bharti Shah for the purpose of keeping her posted that a notice was sent to the respondent no. 2. It was necessary to send a notice to Bharti Shah as she had accompanied respondent no. 2 to the shop for the purchase of materials. According to the counsel for the applicant, notice was not sent to Bharti Shah but it was a letter of intimation, that the C.C. copy was sent to her. It is further submitted that the present respondent no. 2 is the signatory of the cheque and that she had signed on behalf of "Hair Spa" which would clearly establish that she is the proprietress of "Hair Spa". It is further submitted by the counsel for the applicant that the accused had not denied that the cheque was signed by her. According to the counsel, the fact that the signed cheque was issued in favour of the complainant, presumption ought to have been drawn under section 139 of Negotiable Instruments Act that the cheque was issued towards legally enforceable debt and the accused was liable for offence punishable under section 138 of Negotiable Instruments Act. 4. It was the defence of the accused that she had never purchased any material from the complainant's firm. The she was residing with Bharti Ben Shah. She had closed her firm 4 years ago. That she had given blank signed cheques to Bharti Shah. She had introduced Bharti Shah to the complainant and that the complainant and Bharti Shah together have conspired and misused the cheques issued in favour of Bharti Shah. According to the accused, the goods were sold to Bharti Shah who has misused the cheques issued by her. 5. The perusal of the evidence of the complainant would show that he had demanded the cheque amount of both the cheques from Bharti Shah by giving her notice. He had not placed any documents alongwith the affidavit to show that he was proprietor of Ambika Fly Palace. He has admitted in the cross examination that he has not produced the bills along with the affidavit. It is also admitted by the complainant that the postal remark ''Not known" were returned to him unserved. It is further admitted that the signature of the respondent at Exhibit P-16 would be that of the staff of the accused. He has admitted in the cross examination that he has not produced the bills along with the affidavit. It is also admitted by the complainant that the postal remark ''Not known" were returned to him unserved. It is further admitted that the signature of the respondent at Exhibit P-16 would be that of the staff of the accused. He has feigned ignorance about the residential address of the accused. He has also admitted that the present respondent no. 2 had introduced Bharti Shah to her. He has then stated that he was not aware as to whether the present respondent no. 2 was residing with Bharti Shah. He had not produced that statement before the Court. 6. The complainant had no documentary evidence to show that material was supplied on credit. He has further admitted that he was not sure as to whether the said goods were purchased by Bharti Shah. Although it is a matter of fact that notice was issued on 3 addresses, the complainant was not aware about the identitity of the owners of the said 3 premises. The complainant has examined Tina Khurana who was working as a Deputy Branch Manager in ICICI Bank. She had deposed before the Court that the account of her "Hair Spa" was being operated by Sangita Chalwad. 7. In her statement under section 313 of Code of Criminal Procedure, 1973, the present respondent no. 2 has stated that she had not received any notice. She has further submitted that she was residing in the house of Bharti Shah. Her cheques were lying with her. She had taken said goods for herself as she was having transactions with the complainant and that Bharti Shah has misused the cheque. In answer to question no. 15, accused has stated that Bharti Shah is related to the complainant. He has admitted that she had only one transaction with the complainant 5 to 6 years ago. She has further stated that she had closed her business before 4 years. 8. Learned counsel for the respondent submits that reasons assigned by the Magistrate for acquitting the accused are justifiable reasons and do not call for any interference. 9. Learned Magistrate has rightly observed that the complainant is not sure as to whether the goods were delievered to the present respondent no. 8. Learned counsel for the respondent submits that reasons assigned by the Magistrate for acquitting the accused are justifiable reasons and do not call for any interference. 9. Learned Magistrate has rightly observed that the complainant is not sure as to whether the goods were delievered to the present respondent no. 2 or to Bharti Shah and hence the accused has rebutted the presumption on the basis of the admissions of the complainant. Learned Magistrate has rightly held that there is no documentary evidence to prove that cheques were issued by the present respondent no. 2 towards legally enforceable debt and hence has rightly acquitted the accused. The findings recorded by the Magistrate are based on sound principles of law. The reasons assigned are justifiable. There is no reason to interfere with the findings recorded by the Magistrate. ORDER i) Application seeking leave to appeal is rejected. Appeal dismissed.