Sunday, 20 October 2019

Whether accused in cheque dishonour case can be acquitted if complainant has failed to produce original notice?

At the outset, it does appear that the complainant failed to
prove the notice sent by producing the original of the notice. What
was produced is only the photo copy. Moreover, the postal
acknowledgment card also has not been produced to prove that notice
has been served on the accused. Moreover, the complainant has also
not produced any invoice that proves that there was a legally
enforceable debt to the complainant because the invoice which has
produced does not indicate anywhere the name of the sole proprietary
M/s.Rajhans Cloth House and that document did not have any
evidence to prove that the complainant had received the goods
mentioned in the document.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE
CRIMINAL APPEAL NO.976 OF 2002

M/s.Rajhans Cloth House V/s.  Annappa Fakira Manjalkar 

CORAM: K.R.SHRIRAM,J
DATE : 17.10.2019


1. On 14.10.2019 this appeal was called out twice but none
appeared for appellant. It was stood over to 15.10.2019 but due to
paucity of time, could not be taken up, so also on 16.10.2019. Today
when the appeal is taken up for hearing, once again appellant is
absent. Therefore, this Court perused the evidence and the impugned
judgment and the complaint with the assistance of Ms.Malhotra,
learned APP appearing for the State and Mr.Pethe appearing for
respondent no.1.

2. This appeal is filed against an order of acquittal on a complaint
filed by appellant under Section 138 of the Negotiable Instrument
Act.
3. It is the case of appellant that the accused purchased goods
from appellant on credit and the amount payable was Rs.50,293.95/- .
The accused paid Rs.293.95/- and promised to pay balance amount of
Rs.50,000/- in 4 to 5 days. On 14.8.1999 accused issued post dated
cheque for Rs.50,000/- in the name of complainant which cheque
when deposited was dishonoured with the endorsement “Refer to
drawer”.
4. The complainant issued a statutory notice on 23.8.1999 and the
notice was served on 24.8.1999 despite which the amount was not
paid and hence the complaint.
5. It is the case of the accused that he had not purchased any
goods from the complainant but he used to take loan from the brother
of the complainant and he had borrowed sum of Rs.30,000/- and the
cheque for Rs.50,000/- was given as security towards repayment of
amount of Rs.30,000/-. The cheque given was a blank cheque
according to accused. Accused had repaid loan by issuing two cheques

bearing nos.061588 and 061589 and therefore, that loan account has
been closed. The complainant instead of returning the security cheque
of Rs.50,000/- tried to encash the said cheque.
6. On behalf of the complainant 4 witnesses were examined and as
regards the accused, he himself gave evidence.
7. At the outset, it does appear that the complainant failed to
prove the notice sent by producing the original of the notice. What
was produced is only the photo copy. Moreover, the postal
acknowledgment card also has not been produced to prove that notice
has been served on the accused. Moreover, the complainant has also
not produced any invoice that proves that there was a legally
enforceable debt to the complainant because the invoice which has
produced does not indicate anywhere the name of the sole proprietary
M/s.Rajhans Cloth House and that document did not have any
evidence to prove that the complainant had received the goods
mentioned in the document.
8. In 1Rohtash Vs. State of Haryana the Supreme Court held that
the law of interfering with the judgment of acquittal is well settled. It
1 (2012) 3 SCC (Cri) 287

is to the effect that only in exceptional cases where there are
compelling circumstances and the judgment in appeal is found to be
perverse, the appellate court can interfere with the order of the
acquittal. The appellate court should bear in mind the presumption of
innocence of the accused and further that the trial court’s acquittal
bolsters the presumption of innocence. Interference in a routine
manner where the other view is possible should be avoided, unless
there are good reasons for interference.
9. In the circumstances, I see no reason to interfere with the
impugned judgment and order. Appeal dismissed.
(K.R.SHRIRAM,J)

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