Dismissed

Arihant Engineers v. Hirakani Milks and Milk Products and Anr.

Bombay HC27 Oct 2023APEAL/1132/2008

Case brief

AI extract

What is this about?

The High Court dismissed an appeal seeking conviction of the accused under Section 138 of the NIL for cheque dishonour. Upholding the acquittal, the court found insufficient evidence that the cheque was issued for the specific transaction value as the cheque amount exceeded the proven outstanding sum admitted by the complainant. Appeal dismissed.

What did the court decide?

The appeal is dismissed; the acquittal of the accused is upheld.

Arihant Engineers Vs Hirakani Milks and Milk Products and Anr. — Cheque Dishonour | Bombay HC (2023)

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Chitra Sonawane.

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Apeal-1132-2008(J).doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1132 OF 2008

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Arihant Engineers

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a proprietary concern through its proprietor Subhash Baburao Dhone Age 59 years, Occ: Business, r/o Flat No.5, Raj Apartments, Shreedhar Ngar, Chinchwad, Pune

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Digitally signed by CHITRA SANJAY SONAWANE Date: 2023.10.27 12:41:34 +0530

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CHITRA SANJAY SONAWANE

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… Applicant (Orig.Complainant)

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Vs.

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Hirakani Milk and Milk Products a proprietary firm having address at Ravathal, Post Kosabi, Tal. Mahad, Dist.Raigad Through is proprietor Shekhar Tadphale

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Shree Shekhar Tadphale Proprietor Hirakani Milk & Milk Products, age Adult, Occ:Business R/o Gaval Galli, Near Gandhi Talkies, Mahad, Tal. Mahad, Dist.Raigad

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3.The State of Maharashtra … Respondents. (Orig.Respondents)

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Mr Rahul Vijaymane, Advocate i/b SA Rajeshirke for appellant. Mr Tukaram Shendge, Advocate i/b Pratap Patil for respondents No.1 and 2.

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Mr HJ Dedhia, APP for State/respondent No.3.

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Page No. 1 of 7 ____________________________________________ 27 October 2023

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Chitra Sonawane.

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Apeal-1132-2008(J).doc

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Coram: R.N.Laddha, J. Reserved on : 6 September 2023 Pronounced on : 27 October 2023.

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Judgment :

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The legality, propriety and correctness of the Judgment
and Order dated 29.06.2007, passed by the learned Judicial
Magistrate First Class, Pimpri, in CC No.4946 of 2004,
whereby the accused/respondents No.1 and 2 came to be
acquitted of the offence punishable under Section 138 of the
Negotiable Instruments Act, 1981 (for short ‘the Act’), is
assailed in this Appeal.

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2.Respondent No.1 (original accused No.1) is a
proprietary firm of which respondent No.2 (original accused
No.2) is the proprietor. The Appellant (original complainant)
is also a proprietary firm that supplies dairy equipment. The
accused/respondent No.2 placed a purchase order with the
appellant/complainant firm for a complete set of dairy
equipment required for milk products, with a total cost of
Rs.10,25,000/- with the condition that 90% of the total
amount was required to be paid by the accused at the time of
taking out equipment from the manufacturing plant of the
complainant, and the remaining 10% was to be paid on
commissioning of the equipment in the accused firm. The
accused then accepted and confirmed the order. As per the

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Page No. 2 of 7 ____________________________________________ 27 October 2023

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Chitra Sonawane. Apeal-1132-2008(J).doc

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purchase order, the complainant manufactured the dairy
equipment and delivered it to the accused firm.

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3.For the payment of the cost of this equipment, accused
No.2 issued a cheque bearing No.450382 dated 14.6.2004 for
Rs.4,95,000/- drawn on the Mahad Co-operative Urban Bank
Limited in favour of the complainant. The cheque was
deposited by the complainant in Janaseva Sahakari Bank
Limited, Bhosari, MIDC Branch, Pune, on 17.06.2004. It
returned unpaid on 05.07.2004 for the reason “not arranged
for”. This fact was intimated to the complainant on
24.07.2004 by his banker. The complainant sent a notice on
31.07.2004 to the accused by registered post AD and UPC
demanding the payment of the cheque amount. However, the
accused/respondents No.1 and 2 refused to accept the notice
and they did not pay the cheque amount. Therefore, the
complainant was constrained to lodge the complaint for the
offence punishable under Section 138 of the Act.

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4.The Learned Magistrate took cognizance of the offence
and summoned the accused. On the appearance of the
accused, the particulars of the offence were read over and
explained to him. The accused abjured the guilt and claimed
for trial.

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Page No. 3 of 7 ____________________________________________ 27 October 2023

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Chitra Sonawane. Apeal-1132-2008(J).doc

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5.During the course of the trial, the learned Magistrate
recorded the evidence of Subhash Dhonde (PW1), the
proprietor of the complainant firm; and Vilas Landge (PW2),
Manager of Janaseva Bank. A number of documents were also
tendered on behalf of the complainant. The statement of the
accused under Section 313 of the Cr.P.C. came to be recorded.
The accused, in his defence, examined a witness, Atmaram
Soundalgikar (DW 1), who signed the agreement executed
between the complainant and the accused as a witness. He
relied on the agreement (Exh.64) executed between the
complainant and the accused.

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6.After appraisal of the evidence and the documents
tendered for his perusal, the learned Magistrate was
persuaded to acquit the accused. Being aggrieved by and
dissatisfied with the impugned judgment and order of
acquittal, the complainant has preferred this Appeal.

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7.I have heard the learned Counsel for the appellant, Mr
Rahul Vijaymane; Mr Tukaram Shendge, the learned Counsel
appearing on behalf of respondents No.1 and 2; and Mr HJ
Dedhia, learned Additional Public Prosecutor for respondent/
State. Perused the impugned judgment, grounds in appeal
memo, evidence and material on record.

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Page No. 4 of 7 ____________________________________________ 27 October 2023

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Chitra Sonawane. Apeal-1132-2008(J).doc

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8.The cross-examination of the complainant shows that
the cheque amount exceeded the outstanding amount. The
complainant stated that it was subsequently decided in the
agreement that 90% of the amount would be paid at the time
of dispatching machinery from his premises. However, this
agreement was not placed on record.

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9.The evidence of the complainant further revealed that
the total cost agreed between the complainant and the accused
for dairy equipment was Rs.10,25,000/-. The invoice (Exh.42)
also establishes this fact. It is not in dispute that Rs.7,40,000/-
was paid by the accused to the complainant, and only
Rs.2,85,000/- was due from the accused. The cheque (Exh.39)
is Rs.4,95,000/- which is more than the outstanding amount
from the accused. The complainant admitted this fact in his
cross-examination.

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10. Furthermore, the complainant admitted in his cross-
examination that he visited Sawant Engineering Mills with the
accused, and the accused wanted to purchase a diesel engine
from them. The complainant had not led any documentary
evidence to prove the condition of payment of 90% of the
amount. As per the agreement (Exh.64) proved by DW 1 and
admitted by the complainant in his cross-examination, it is

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Page No. 5 of 7 ____________________________________________ 27 October 2023

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Chitra Sonawane. Apeal-1132-2008(J).doc

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clear that they agreed to the terms that the complainant
should provide machinery as per the quotation (Exh.38). In
the quotation, there is no condition to show that the 90%
amount is to be paid while dispatching the machinery.

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11. According to DW 1, Atmaram Yashwant Sawdalgikar,
the remaining amount of Rs.2,85,000/- was to be paid after
the installation of machinery. However, as of now, the
machinery has not been installed. His evidence established
that he was a witness to the transaction between the
complainant and the accused and that Rs.2,85,000/- was only
due to the accused.

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12. The proforma invoice (Exh.42) also indicates that the
total amount is Rs.10,25,000/-. Although there is a sales tax
column in this proforma invoice, there is no reference to Sales
Tax. As per the letter (Exh.43), the complainant provided
details of the outstanding amount. According to this letter, the
sales tax amount was Rs.1,58,875/- and interest was Rs.
1,10,000/-. Based on this letter, it appears that including the
bill amount of Rs.10,25,000/-, sales tax of Rs.1,58,875/- and
interest amount of Rs.1,10,000/-, the total outstanding
amount was Rs.12,93,875/- and out of which the complainant
had received the payment of Rs.7,40,000/-. As per this letter,

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Page No. 6 of 7 ____________________________________________ 27 October 2023

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Chitra Sonawane.

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Apeal-1132-2008(J).doc

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an amount of Rs.5,53,875/- was due and payable by the
accused to the complainant. The cheque amount is more than
the outstanding amount, and therefore, in such circumstances,
the learned trial Court has rightly drawn an inference against
the complainant that the said cheque was not issued for
payment of the cost of dairy equipment.

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13. The complainant’s case is not substantiated by
documentary evidence. The total amount due of
Rs.12,93,875/- could not be proven by any bill on record. The
complainant’s admission during cross-examination that the
cheque amount exceeded the outstanding amount was also to
be taken into consideration. Given the circumstances, the
observations of the Magistrate cannot be considered
erroneous, especially when there is no documentary evidence
and the admissions were elicited during cross-examination.

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14. As a result, this appeal fails and is dismissed accordingly.

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[ R.N. Laddha, J. ]

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Page No. 7 of 7 ____________________________________________ 27 October 2023

Arihant Engineers v. Hirakani Milks and Milk Products and Anr.

Case brief

What is this about?

What did the court decide?

Arihant Engineers v. Hirakani Milks and Milk Products and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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