In appeal against an order of acquittal in a Section 138 NI Act case, the Court rejected the applicant's application for leave to prefer appeal, holding the trial court's finding of no legally enforceable debt and cheque forgery was not perverse.
Application seeking leave to prefer appeal is rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1
SNS
IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.1502 OF 2010
J.K.Ice ...Applicant. v/s. M/s. Malgave Milk and Milk Products and Anr. ...Respondents.
Mr. Shrikant Chavan i/by Shri Umesh R. Mankapure ,advs. For the Applicant.
Mr.V.B.Konde, APP For the Respondent/State.
CORAM : J.H. BHATIA, J. DATED : MARCH 7, 2011.
P.C.
1 This application is filed by the original complainant seeking
leave to prefer appeal against the judgment and order of acquittal in summary criminal case no.1482 of 2005 passed by the 4th J.M.F.C., Sangali in a case under Section 138 of the Negotiable Instruments Act.
2 According to the complainant, he had supplied 463 ice slabs to the accused during the period from 1.5.2005 to 31.5.2005 and for repayment of the dues for that ice, the accused/respondent issued a cheque dated 23.7.2005 for an amount of Rs.32,743.36 paise. Cheque was dishonoured and in spite of service of notice, the accused failed to make the payment, therefore, complaint under Section 138 of the of the Negotiable Instruments Act was filed. The accused contended that she
2
was dealing in the business of milk and milk products. In connection
with those transactions, she had issued blank cheques to a third person and the applicant had misused that blank cheque. According to her, she had never entered into any transaction for purchase of ice from the applicant nor any amount was due to him nor she had issued cheque to him.
3 The trial Court considered oral and documentary evidence led by both the parties and came to conclusion that the complainant had failed to prove that there was any legally enforceable debt or liability for which accused had issued alleged cheque. He also found that blank cheques appear to have been misused.
4 On perusal of the judgment and the other material produced with this application, it appears that according to the complainant whenever ice was supplied on credit, credit bills were issued and same were required to be signed by the purchaser. In the present case though ice was supplied from 1.5.2005 to 31.5.2005 on different dates, no separate credit bills were issued. Even computerised bill generated on 31.5.2005 does not bear signature of accused as purchaser. It is signed by the complainant himself. Complainant had not shown these sales in the statement for VAT to the Sales Tax authorities. He had also not produced
3
any document to show that these dues were ever shown by him in income-tax returns. The trial Court noted that ink and handwriting of signature of the accused on the disputed cheque differed from the ink and handwriting of the remaining contents of the cheque. Photocopy of the cheque is also produced by the complainant with this application. On perusal of the same there remains no doubt that the contents of the cheque are written by somebody other than the accused herself, while according to the complainant, whole cheque was written by the accused. This does not appear to be truth. Accused has also examined defence witness Mahavir, who is brother-in-law of the accused. According to him, their family has chilling plant and they provided ice to Malgave Milk and Milk Products run by the accused. Therefore, there was no reason for the accused to purchase such huge quantity of ice from the complainant during the period of one month.
5 It is settled position of law that the Appellate Court will not interfere in the order of acquittal unless order appears to be per-se wrong or perverse. High Court will not interfere merely because a different view is also possible. Taking into consideration the facts and circumstances and the reasons given by the trial court, it is difficult to say that the judgment and order of acquittal is perverse or per-se wrong.
4
6 Therefore, application seeking leave to prefer appeal stands
rejected.
(J.H. BHATIA,J.)
3 issues framed by the court
Whether the learned trial Court committed a perversity in arriving at the verdict of acquittal in the criminal matter.
Whether leave to prefer appeal under Section 138 of the Negotiable Instruments Act is maintainable after acquittal in summary proceedings.
Whether the evidence produced by the jury or lower courts supports the finding that no legally enforceable debt existed.
1 provisions across 1 enactments
J.K.Ice
M/s. Malgave Milk and Milk Products and Anr.
J.H. Bhatia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
