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2021 DIGILAW 1349 (BOM)

Industrial Fuel Consultants v. Laxman Sharma

2021-10-12

R.B.DEO

body2021
JUDGMENT R.B. Deo, J. - Heard Mrs. Radhika Bajaj, the learned counsel for the appellant and Mr. N.B. Bargat, the learned counsel for the respondent. 2. The appellant, who is original complainant in Criminal Complaint 1813/1999, is challenging the judgment dated 7.9.2016, rendered by Judicial Magistrate First Class, Nagpur, whereby the respondent accused is acquitted of offence punishable under section 138 of Negotiable Instruments Act, 1881 (“Act” for short). 3. The complainant is the sole proprietor of M/s. Industrial Fuel Consultants. He instituted complaint under section 138 of the Act, the gist of which is thus: The accused deals in coal under the name and style “Ravi Coal Depot”. The complainant supplied coal to the accused from time to time and while the accused paid some sum, some remained unpaid. Towards the payment of the unpaid amount, the accused issued cheque drawn on Bank of Maharashtra, Dharampeth Branch, dated 3.8.1999, bearing Number 082565, which was dishonoured for want of sufficient funds. The complainant issued notice, which was duly served, the accused did not make the payment within the statutorily prescribed period and an offence punishable under section 138 of the Act is committed. 4. The striking feature of the complaint is that every material particular is conspicuously missing. The complaint is blissfully vague. The complaint does not disclose when was the coal supplied, where was the delivery made, what was the quantity of coal supplied etc. The complainant stepped into the witness box and the affidavit in lieu of examination-in-chief is obviously as vague as the complaint. 5. In the cross-examination of the complainant, it is extracted that the complainant is an income tax payee. The complainant asserts that the outstanding amount is reflected in the balance sheet concerning the relevant period, which he can produce on record. The complainant admits to have purchased steam coal from Western Coalfields Limited (“WCL”) and that a licence is required for such purchase. The complainant admits that he did not have the requisite licence. The complainant then claims to have purchased the coal from the open market. Pertinently, the complainant admits that he is not in a position to disclose when and what quantity of coal he supplied to the accused nor can he disclose the amount received from the accused and the dates of the receipt. The complainant then claims to have purchased the coal from the open market. Pertinently, the complainant admits that he is not in a position to disclose when and what quantity of coal he supplied to the accused nor can he disclose the amount received from the accused and the dates of the receipt. It is extracted in the cross-examination, that it was the accused, who held the requisite licence to purchase coal from WCL and that whenever the complainant purchased coal from WCL for the accused, it was the accused, who gave complainant demand draft. It is further admitted that to save time to obtain the demand draft, the accused opened bank account at Nagpur. The complainant denies the suggestion that blank cheques duly signed were given to him by the accused to facilitate obtaining the demand draft. The complainant denies the suggestion that he misused one such cheque since the accused terminated his agency. 6. The learned Magistrate was pleased to acquit the accused inter alia recording a finding that the complainant failed to prove that he was engaged in purchase and sale of coal. The learned Magistrate noted that the complainant was not in a position to disclose the quantity of coal allegedly supplied to the accused, or the amount paid by the accused and the balance due. The learned Magistrate noted that the complainant did not place on record any material to prove that there was a sale and purchase transaction pursuant to which the complainant supplied coal to the accused. The complainant found the defence of the accused, as is discernible from the cross-examination, probable and held that the complainant did not prove that the cheque was issued towards existing and enforceable debt. 7. The learned counsel for the complainant Mrs. Radhika Bajaj would submit that the learned Magistrate fell in serious error in not appreciating that since the accused did not deny his signature on the cheque, the statutory presumption under section 139 of the Act came into play and that the accused failed to rebut the same. Mrs. Radhika Bajaj would invite my attention to the decision of the Hon'ble Supreme Court in M/s. Kalamani Tex v. P. Balasubramanian, AIR ONLINE 2021 SC 82. In rebuttal, the learned counsel for the accused Mr. Mrs. Radhika Bajaj would invite my attention to the decision of the Hon'ble Supreme Court in M/s. Kalamani Tex v. P. Balasubramanian, AIR ONLINE 2021 SC 82. In rebuttal, the learned counsel for the accused Mr. N.B. Bargat would submit, that the accused has duly rebutted the presumption under section 139 of the Act by extracting in the cross-examination material admissions which would not only probabilize the deference, which would destroy the credibility of the version of the complainant. Mr. N.B. Bargat relies on the decision of the Hon'ble Supreme Court in Kumar Exports vs. Sharma Carpets, [ (2009) 2 SCC 513 ] and the decision rendered by learned Single Judge of this Court in Sheikh Jalal (D) through L.Rs. Vs. State of Goa and Ors, 2018 (1) Mh. L.J. 225. Mr. N.B. Bargat would also press in service Basalingappa v. Mudibasappa, AIR 2019 SC 1983 . 8. The submission canvassed by Mrs. Radhika Bajaj that the presumption under section 139 of the Act is triggered, is unexceptionable. I need not burden the judgment by referring to the consistent view of the Hon'ble Supreme Court and this Court, that it is mandatory to invoke the statutory presumption in such cases. However, while the presumption is indeed triggered, the presumption is rebuttable. The burden on the accused is to make out a probable defence. The accused need not step into the witness box or adduce direct evidence. It would suffice if the accused is in a position to create a reasonable doubt that the version of the complainant is false. In the factual matrix, the accused has more than succeeded in rebutting the presumption. 9. I have noted supra, that except a bald statement in the complaint that the disputed cheque was issued towards payment of unpaid amount, there is no disclosure whatsoever as to when was the coal supplied, what was the quantity of the coal supplied, what was the amount received from the accused and what amount is unpaid. The complainant did not adduce any documentary evidence to show that he supplied coal to the accused, at any point in time. While the complainant asserted that the outstanding is reflected in the balance sheet, the balance sheet is not produced on record. The books of accounts or the stock register or the transport documents or documents of delivery and receipt of coal are not produced. While the complainant asserted that the outstanding is reflected in the balance sheet, the balance sheet is not produced on record. The books of accounts or the stock register or the transport documents or documents of delivery and receipt of coal are not produced. In my considered view, in cases where the allegation is that certain goods were supplied and the cheque was issued towards payment of the consideration, it would be hazardous to convict only on the basis of the presumption under section 139 of the Act in the absence of any material, and which material ordinarily would be expected to be in the complainant's possession and control, to show that goods were as a fact supplied to the accused. 10. The defence of the accused is of misuse of cheque. This defence is more than probabilized by the admissions extracted in the cross-examination, to which a reference is already made in paragraphs supra. 11. While dealing with an appeal against acquittal, the Court must bear in mind that the presumption of innocence is only strengthened by the acquittal and if two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should be slow to reverse a judgment of acquittal. Reference may be made, to the decision of the Hon'ble Supreme Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415 . 12. No case is made out for interference in the judgment of acquittal. 13. The Appeal is dismissed.