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2018 DIGILAW 1650 (HP)

Sudeep Trading Company v. Deepak Aukta

2018-09-13

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The complainant/victim, stands aggrieved, by the pronouncement, of, an order, of acquittal by the learned trial Court, vis-a-vis the accused, upon, Cr. Complaint No. 40-3 of 2007. 2. The facts relevant to decide the instant case, are that M/s Sudeep Trading Company through its proprietor Suddep Bansal has filed a criminal complaint against accused, namely, Deepak Aukta Proprietor of M/s Deepak Electrical Store and M/s Deepak Electrical Store through its proprietor. In the complaint, it is alleged that the complaint deals in sales/trading of electrical, Hardware items, paints etc. at Parwanoo. The accused has business relations with the complainant and he is in full control over the administrative and financial affairs of concern, M/s Deepak Electrical Store. It is further alleged that the accused used to regularly place orders on telephone to the complainant for purchasing electrical goods and as per orders the complainant sold the items to the accused. It is also alleged that in order to discharge part of the liability being the price of items purchased, accused had issued two cheques, one bearing No.957286 of 10.1.2006 for a sum of Rs.15,000/- and the other bearing No.957287 of 29.11.2006 for a sum of Rs.20,000/-, in favour of the complainant drawn on State Bank of India, Jubbal. It is alleged that the accused had assured the complainant that the cheques would be encahsed as and when presented. Further, it is alleged that the complainant, had presented the cheques through its banker i.e. The Parwanoo Urban Co-operative Bank, Sector-1, Parwanoo but the same were returned as unpaid on the ground “Exceeds Arrangement”. It is alleged that the complainant was intimated by its banker at Parwanoo through the returning memo dated 17.5.2007 alongwith the dishonoured cheques and another returning memo from the banker of the accused with remarks “Exceeds Arrangement”. On receipt of this information regarding dishonour of cheques, legal notice of 4.6.2007, calling upon them to make the payment for the aforesaid dishonoured cheques, but despite the service of the said notice(s) the accused have not made any payment to the complainant and thereby have committed an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. A notice of accusation, was, put to the accused by the learned trial Court, for his, committing an offence punishable under Section 138 of the Negotiable Instruments Act. 3. A notice of accusation, was, put to the accused by the learned trial Court, for his, committing an offence punishable under Section 138 of the Negotiable Instruments Act. In proof of his case, the complainant examined 3 witnesses. On conclusion of recording, of, the complainant's evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure, was, recorded by the learned trial Court, wherein, the accused claimed innocence, and, pleaded false implication, besides he examined two witnesses in his defence. 4. On an appraisal, of, the evidence on record, the learned trial Court, returned findings of acquittal qua the accused/respondent herein. 5. The complainant, stands, aggrieved by the judgment of acquittal recorded qua the accused/respondent. He, has concertedly, and, vigorously contended qua the findings of acquittal recorded by the learned trial Court, standing not, based on a proper appreciation of the evidence on record, rather, theirs standing sequelled by gross mis-appreciation of the material on record. Hence, he contends qua the findings of acquittal, warranting reversal, by this Court in the exercise of its appellate jurisdiction, and, theirs standing replaced by findings of conviction. 6. On the other hand, the learned counsel appearing for the accused/respondent herein, has, with considerable force and vigour, also contended qua the findings of acquittal recorded by the learned trial Court rather standing based on a mature and balanced appreciation, by it, of the evidence on record, and, theirs not necessitating any interference, rather theirs meriting vindication. 7. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 8. The solitary reason assigned by the learned trial Court, hence, for recording an order of acquittal, upon, the accused, is, anvilled upon, the proprietary concern, nomencaltured as M/s Deepak Electrical Store, not being owned by the accused, rather, it, as depicted by Ex.DW2/A, and, by Ex.DW2/B, being owned by one Deepika Aukta. The aforesaid reason, for the reasons to be ascribed hereinafter, is grossly fallacious; (a) the complainant, in his testification, comprised, in his examination-in-chief, rendering clear echoings, vis-a-vis, accused No.1, visiting his commercial establishment, located at Parwanoo, and, his thereat supplying electrical items, to him; (b) his making an apposite entry in his apt register(s); (c) the dishonoured negotiable instruments, respectively, borne in Ex.CW1/A, and, in Ex.CW1/B, being signatured, in his presence by the accused. The afore rendered echoings, borne in his examination-in-chief, are meted apt corroboration(s) by CW-3. The afore stated echoings, testified, in, concurrence by CW-1, and, by CW-3, enjoy immense credibility, (d) given each, during, the course of their respective cross-examinations, not being meted any apposite suggestions, for hence belying their respective echoings, occurring in their afore respective examinations-in-chief, qua, Ex.CW1/A and Ex. CW1/B being sigantured by the accused in their presence. The absence of meeting, of, afore suggestions, to both, by the learned defence counsel, while holding, each to cross-examination, hence, render their apt echoings, qua, the accused signaturing Ex.CW1/A and Ex.CW1/B, in their presence, and, thereafter his handing over, to the complainant, the afore exhibits, rather being construable to be credible, wherefrom, hence, a further inference is bolstered, especially when the accused, does not, deny his signatures borne on Ex.CW1/A, and, on Ex. CW1/B, qua the afore exhibits hence holding his authentic signatures; (e) the absence, of, the accused, to, bely the entries, testified by CW-1, to be made by him, in the relevant register, in respect of the accused standing delivered electrical items, also, enable, erection of an inference, qua, his hence making an apt acquiescence therewith; (f) whereupon, it is to be concluded, qua, the complainant rather efficaciously proving qua the amounts, borne in Ex.CW1/A, and, in Ex.CW1/B, being towards a legally recoverable debt or liability, (g) more so, when the aforesaid presumption, remains obviously unrebutted, by adduction, of, cogent evidence, besides the aforesaid firm credible evidence, qua the aforesaid legal parameter(s) rather also facilitates, the, apt drawing, of, an inference qua hence, the complainant, discharging the apt onus, vis-a-vis, the afore apposite statutory presumption. 9. The learned trial Court, merely, upon anvil, of reflections, borne, in Ex.DW2/A, and, in Ex.DW2/B, proceeded, to record, an order of acquittal upon the accused. However, the placing, of, reliance thereon, is, grossly inappropriate, given (i) qua the aforesaid not appertaining to the bank concerned, whereagainst, Ex.CW1/A, and, Ex.CW1/B, were drawn, rather theirs appertaining qua M/s Deepak Electrical Store, (ii) whereas, the apt account where against Ex.CW1/A, and, Ex.CW1/B, were drawn, is testified by DW-1, to be owned by One Deepak Aukta. Since, the relevant account(s), whereagainst Ex.CW1/A, and, Ex. Since, the relevant account(s), whereagainst Ex.CW1/A, and, Ex. CW1/B were drawn, cheques whereof, for want of sufficient funds therein, were, refused to be honoured, uncontrovertedly and visibly, stand, in the name of Deepak Aukta, (iii) thereupon, contrary therewith reflections, if any, borne in Ex.DW2/A, and, in Ex.DW2/B, are, insignificant, nor it was appropriate for the learned trial Court, rather to discard, the, probative worth of the afore testification, of DW-1, as, occurring in his cross-examination. 10. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court has not appraised the entire evidence on record in a wholesome and harmonious manner, apart therefrom, the analysis of the material on record by the learned trial Court, suffers, from, a gross perversity or absurdity of mis-appreciation and non appreciation of evidence on record. 11. Consequently, the instant appeal is allowed and the judgment impugned before this Court is quashed and set aside. In sequel, the accused/respondent herein, is, convicted for the offence punishable under Section 138 of the Negotiable Instruments Act. He be produced before this Court on 3/10/2018 for his being heard on the quantum of sentence.