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Madhya Pradesh High Court · body

2017 DIGILAW 313 (MP)

ADARSH STATIONERY v. SHRI MAHAVEER AGENCY

2017-03-01

VIVEK AGARWAL

body2017
ORDER : VIVEK AGARWAL, J. Heard. This application under section 378(4) of the Criminal Procedure Code, 1973 has been filed seeking leave to appeal against the judgment dated 15.06.2016 passed in Criminal Case No. 63/2011 by the Court of Judicial Magistrate First Class, Gwalior, wherein the complaint filed by the present applicant has been dismissed on the ground that the complainant had failed to prove that the Cheque in question, which was dishonoured, was not towards any security but was given for discharge of some debt. 2. Learned counsel for the applicant submits that the trial Court has erred in dismissing the complaint by wrongly appreciating the statement and the evidence on record and by wrongly recording a finding that the applicant made a statement that he received the cheque for security purpose, whereas in paragraphs 17 and 18 of the statement of the applicant, he had specifically denied that the accused had given cheque for security purpose. It is also submitted that merely because the applicant had not submitted the cashbook, a wrong presumption has been drawn against the applicant that the cheques were not for discharge of any legal debt but were issued towards security. It is also submitted that once the applicant had succeeded in prima facie proving his case under the provisions of section 138 of the Negotiable Instruments Act (hereinafter for short referred to as "Act"), then the trial Court should not have dismissed the complaint. In support of his case, the learned counsel for the applicant has placed reliance on the judgment of the Hon'ble Jharkhand High Court in the case of M/s. Bharat Sales Corporation Parsudh v. State of Jharkhand as reported in 2004 Cri. L.J. 4569, wherein the Hon'ble High Court has held that it was not clear from the judgment that the Court had applied its judicial mind on the documentary as well as oral evidence produced by the complainant and without assigning any reason discarded the said evidence overlooking the presumption as to the guilt of the accused person and therefore remanded the matter back for reconsideration on the basis of the evidence on record. Learned counsel for the applicant has also placed reliance on the judgment of Hon'ble Calcutta High Court in the case of S.N. Dabholkar v. Duroplus India Pvt. Ltd. & Another as reported in 2007 (2) Crimes 469 (Cal.), wherein it has been held that the defence, which was raised before the Court that cheques were given postdated was since not taken in reply to the legal notice, conviction was not liable to be interfered with. 3. On the other hand, the learned counsel for the respondent has placed reliance on the decision of this Court in the case of Harbanslal v. Shyamsunder as reported in 2014 (4) MPLJ 37, wherein this Court has upheld the acquittal and has held that there was no evidence to show that the alleged cheque was issued for consideration. Similarly, reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Reverend Mother Marykutty v. Reni C. Kottaram & Another as reported in 2013 (2) MPLJ 163 wherein the Hon'ble Supreme Court has held that the High Court failed to discharge its onerous responsibility of considering the material evidence on record and unduly interfered with the order of acquittal passed by the trial Judge without proper reasoning and has set aside the conviction and sentence imposed by the High Court in the impugned judgment. 4. At this juncture, it is now necessary to swift the evidence on record. As per the legal notice Ex.P/3, it was mentioned that for the Sessions 2009-10, books were supplied to the accused person and as per the order as soon as the books were supplied, the accused had paid a sum of Rs. 35,000/- in cash at the point of giving the order and thereafter vide Cheque No. 111942, dated 14.10.2010, a sum of Rs. 2,29,980/- was paid and since that cheque was dishonoured with a note that payment was stopped, therefore notice was issued on 01.11.2010. 5. There is reply to the said notice on record as Ex.P/6, in which it is mentioned that the accused had given order for books on 20.03.2009 for the classes from nursery to 8th Standard and had given advance of Rs. 35,000/- with two blank cheques towards security. 5. There is reply to the said notice on record as Ex.P/6, in which it is mentioned that the accused had given order for books on 20.03.2009 for the classes from nursery to 8th Standard and had given advance of Rs. 35,000/- with two blank cheques towards security. All the books as per the demand were to be supplied upto 31.03.2009, but almost 40% of the books were only supplied upto 27.03.2009 and some books were supplied on 30.03.2009, 30.04.2009 and 04.04.2009, but none of the books for the complete course for any of the classes was supplied till 02.05.2009, as a result the accused could not supply the books to D.P. School causing financial loss to the accused so also loss of image. Since supply was not made properly only 25-30% books could be sold and rest unsold books were returned by the accused on 15.06.2009, which were to the tune of Rs. 2.00 Lacs, but neither any invoice was supplied nor bills were supplied giving the statement of account, as a result, the accused was forced to inform the Bank about stop payment and had sent a notice regarding such action of stop payment of the cheque as has been filed by the accused person as Ex.D/3 along with postal receipt dated 02.05.2009 Ex.D/4. 6. In the evidence of the complainant, in para 7 of the cross-examination, the complainant has admitted that the accused had given a blank cheque to the complainant. He also accepted that he did not remember the date when cheque was handed over to him. However, he had denied the suggestion that the complainant has not produced the list of the books along with covering letter, which was supplied by the accused. On the covering letter, it was clearly mentioned that the cheque was being given towards the security. In para 11 of his cross-examination, he admitted that he had never given any letter to the accused for payment of the remaining amount on account of completion of supply of books. He also admitted in para 14 that accounts were settled between the accused and his Munim and further mentioned that if any accounts were settled, then his Munim must be knowing about such settlement of the accounts. He also admitted in para 14 that accounts were settled between the accused and his Munim and further mentioned that if any accounts were settled, then his Munim must be knowing about such settlement of the accounts. He has admitted that the accused in his evidence has mentioned that he had given a letter in writing to the complainant for supply of the books. He also admitted that a list of books was enclosed along with Ex.D/5, vide which books were returned to Munim of the complainant. He also admitted that the cheques, which were mentioned in Ex.D/1, were directed to be stopped for payment and refuted the allegation that cheque numbers, mentioned in Ex.D/1 and the one which were dishonoured, are different. In his cross-examination, he has categorically mentioned that two cheques by way of security were furnished to the complainant at the time of placing of the order. This fact is also mentioned in Ex.D/3, dated 02.05.2009. The complainant in his cross-examination has admitted that they usually receive letters on the address, which is also mentioned in Ex.D/3. In this backdrop, the impugned judgment is to be appreciated. 7. Learned Judicial Magistrate First Class has dealt with these aspects in para 10 of the impugned judgment. It has come on record that on 02.05.2009, intimation regarding stop payment of the cheque was sent to the complainant by Registered Post. Thereafter on 15.06.2009, unsold books were returned as per the list and such books were received by the Accountant (Munim) of the complainant. It has also come on record that the complainant had received blank cheques and had never asked for balance payment after completing supply of the books and in para 12 of his cross-examination, the complainant admitted that his postal articles are delivered at the address namely M/s. Adarsh Stationery Stores, Darpan Colony, Gwalior (MP), but denied that he accepted Ex.D/4. But the learned Judicial Magistrate First Class has appreciated that if a letter is sent by Registered Post and if address is correctly mentioned, then the letter is presumed to have been delivered to such person and in case it is not delivered, then it is returned to the sender of the communication. There is no such material that Ex.D/3 was returned back to the accused person. There is no such material that Ex.D/3 was returned back to the accused person. It has also come on record that accused has sent Ex.D/5, which are the details of unsold books and in para 3 of his cross-examination, the complainant refused to acknowledge Ex.D/5, but in para 13 he mentioned that the accused never approached him for settlement of accounts and such accounts were transmitted to him in the month of April or May, but has not adverted to the fact that when he had received intimation regarding stop payment of the cheque with a request not to present them for encashment, why such cheques were presented after a lapse of a period of more than one year in October 2010. As per the complainant, accused had given him a cheque bearing No. 111942 after a lapse of considerable time on 14.10.2010, whereas in the cross-examination, he has admitted that he had received undated cheques from the accused person. This contradiction further depicts that the complainant had not approached the Court with clean hands. The accused had rebutted the presumption under Section 139 of the Act by firstly sending communication dated 02.05.2009 much before presentation of the cheques for encashment by Registered Post and thereafter maintaining the same stand in reply to the legal notice Ex.D/6 that cheques were given by way of security and the account was settled with the Accountant of the complainant and therefore no payment was due to be paid to the complainant. Therefore, the Court of Judicial Magistrate First Class has not committed any illegality in holding that the cheques in question were by way of security and not for discharge of any debt and has rightly dismissed the complaint relying on the judgment of the Hon'ble Supreme Court in the case of Indus Airways Private Limited & Others v. Magnum Aviation Private Limited & Another as reported in (2014) 12 SCC 539 , wherein it has been held that if a cheque is issued as an advance payment for purchase of the goods and for any reason purchase order is not carried to its logical conclusion either because of its cancellation or otherwise, and material or goods for which purchase order was placed is not supplied, the cheque cannot be held to have been drawn for an existing debt or liability and dishonour of cheque does not constitute offence under Section 138 of the Act and it may create civil liability. In fact after admission of the complainant that accounts were settled with his Accountant and failure of the complainant to examine the Accountant in support of his case that settlement was not made or despite settlement a sum of Rs. 2,29,980/- was due from the accused, the judgment in the case of Indus Airways Private Limited (supra) is applicable to the facts and circumstances of the case so also the cases of Reverend Mother Marykutty (supra) and Harbanslal (supra) are relevant to the facts and circumstances of the case. The judgment cited by the learned counsel for the applicant, i.e., M/s. Bharat Sales Corporation Parsudh (supra) and S.N. Dabholkar (supra) are not applicable inasmuch as in the present case the Judicial Magistrate has not only appreciated the evidence properly, but has also rightly applied its judicial mind. Similarly since the accused had throughout demand and consistent plea that the cheques were issued by way of security and also that the accounts were settled with Munim of the complainant on returning books as per list to the said Munim, the presumption was adequately discharged by the accused person under sections 118 and 139 of the Negotiable Instruments Act and therefore there is no error in the impugned judgment, which deserves to be maintained and therefore this Court refuses to grant leave to file criminal appeal. Thus, this M.Cr.C. is hereby dismissed.