Remanded

M/S. Rahul Agro Input Industries v. Vikas Misal and Ors.

Bombay HC28 Nov 2023APEAL/927/2006

Case brief

AI extract

What is this about?

The High Court set aside the Trial Court's acquittal in a cheque bounce case. The Court held that the lower court erred by not examining the admitted receipt of the statutory notice and the valid authorization of the notice issuer, remanding the matter for fresh findings.

What did the court decide?

Impugned judgment and order quashed and matter remitted to the trial court to hear the parties and decide afresh within three months.

M/S. Rahul Agro Input Industries Vs Vikas Misal and Ors. — Cheque Dishonour | Bombay HC (2023)

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Chitra Sonawane.

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Cri.Appeal-927-2006.doc

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.927 of 2006

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M/s Rahul Agro Input Industries
Through Its Constitutent Attorney
Shri Vyloor Pisharath Raghunathan,
having Branch Office at Panchsheel III,
F-Wing, Flat No.221, 2nd floor, Raheja
Township, Malad (E), Mumbai 400 097

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…
Appellant.

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Versus

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1. Dr. Vikas Misal
Proprietor of M/s Sachin
Krushi Kendra

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2. M/s Sachin Krushi Kendra
Proprietorship firm
Having office at At & Post
Shelgaon Ateel, Taluka

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Digitally signed by CHITRA CHITRA SANJAY SONAWANE SANJAY Date: SONAWANE 2023.11.28 18:48:27 +0530

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3. State of Maharashtra

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...
Respondents.

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Mr MD Mali a/w Ms Santosh Singh for appellant.
Mr AA Palkar, APP for State.
None for respondents No.1 and 2.

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 Coram : R. N. Laddha, J.

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Reserved on : 20 September 2023. Pronounced on: 28 November 2023.

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Judgment:

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The substantive prayer in this appeal is to set aside the
judgment and order passed by the learned Metropolitan
Magistrate, 43rd Court, Borivali, Mumbai, in C.C.No. 820/SS/

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 Page No. 1 of 7
____________________________________________
28 November 2023

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Chitra Sonawane.Cri.Appeal-927-2006.doc

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2005 dated 28.06.2006, by which the complaint filed by the
appellant under Section 138 of the Negotiable Instruments
Act, 1881 (for short ‘the Act’), was dismissed, and the
respondent/accused were acquitted of the charge.

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2.Respondent No.2, the original accused No.2, is a
proprietary firm owned by respondent No.1, the original
accused No.1. The appellant, the original complainant, is also
a proprietary firm that deals in insecticides and pesticides.
Respondent No.1 purchased pesticides worth Rs.1,74,317/-
from the appellant firm. To pay for these pesticides,
respondent no.1 issued a post-dated cheque bearing
No.0098845 of 17.06.2003 for Rs.1,74,317/- drawn on the
Buldhana Gramin Bank, Chikli Branch, in favour of the
complainant. This cheque was dishonoured with the remark
“account closed” upon presentation. Despite demand through
the statutory notice, the payment was not made, and
ultimately, the complaint in question was filed before the
learned trial Court.

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3.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 plea of the accused was recorded on

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 Page No. 2 of 7

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28 November 2023

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Chitra Sonawane.Cri.Appeal-927-2006.doc

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30.07.2005. The accused abjured the guilt and claimed trial.

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4.During the course of the trial, the learned Magistrate
recorded the evidence of Mr. Raghunath Vyloor Pisharath
(PW1), the constituted attorney of Mrs. Vina Gopal Rathi
(proprietress of the complainant firm), who deposed that the
accused had issued a cheque bearing No.0098845 dated
17.06.2003 as payment for the pesticides, which was
subsequently dishonoured and returned for the reason
“account closed”. A number of documents were also tendered
on behalf of the complainant.

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5.After concluding the recording of evidence led by the
appellant, the statement of the accused under Section 313 of
the Code of Criminal Procedure was recorded by the trial
Court wherein the respondent claimed innocence and pleaded
false implication.

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6.The accused, in his defence, examined himself (DW1),
wherein he stated that he had purchased the insecticides from
Rahul Organic, but they were of poor quality and were
rejected by the Zilla Parishad, Buldhana. He also claimed that
the cheque was issued for security purposes and denied any
liability to pay thereunder.

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 Page No. 3 of 7

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28 November 2023

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Chitra Sonawane.

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Cri.Appeal-927-2006.doc

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7.After reviewing the evidence and documents presented,
the learned Magistrate acquitted the accused. The reason for
the acquittal was that the payee or holder, in due course of
the cheque, did not give a statutory notice.

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8.Being aggrieved and dissatisfied with the impugned
judgment and order of acquittal, the complainant has
preferred this Appeal.

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9.In the present matter, respondent No.1 has admitted his
signature on the cheque in question. The record shows that
the respondent signed the cheque as a partner of the
respondent firm ‘M/s Sachin Krushi Kendra’. Further, it is
seen that the statutory notice was duly served on respondents,
but they neither replied to the notice nor made any payment
pursuant thereto. The defence has not disputed the authority
of Rupesh Maheshwari, who signed the notice on behalf of
the appellant firm. It is undisputed that the cheque in question
was dishonoured due to the account being closed. The
respondent has denied receiving the notice. However, it has
been established that the notice was sent by RPAD and under
the certificate of posting at the respondents’ address. The
summons was served on the respondents at the same address.
In such circumstances, unless proven otherwise, it is presumed

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 Page No. 4 of 7
____________________________________________
28 November 2023

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Chitra Sonawane.Cri.Appeal-927-2006.doc

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that the notice was delivered to the addressee. Furthermore,
the respondent admitted in his statement recorded under
Section 313 CrPC that he received the notice.

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10. Mr MD Mali, the learned Counsel appearing on behalf
of the appellant/complainant, submitted that the statutory
notice was on the letterhead of the appellant firm and signed
by Rupesh Maheshwari, the authorised signatory of the
proprietress of the appellant firm. The authorisation of the
signatory was not disputed during the trial, and hence, the
signature is as good as that of the proprietress of the appellant
firm. According to the learned Counsel, if there is any serious
dispute regarding the authorisation of the person who issued
the statutory notice, the accused/respondents could dispute
this position and establish the same during the course of the
trial. However, in the trial, there was no challenge to the
authorisation of Rupesh Maheshwari, who signed the
statutory notice. In support of his contentions, he relied on

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(i) SIL Import, USA Vs. Exim Aides Silk Exporters,
Bangalore1; (ii) TRL Krosakil Refactories Ltd. Vs. SMS Asia
Pvt. Ltd. and Anr.2; and (iii) Vardhman Steel Vs. Sai
Engineering3.

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1 LAWS (SC) 1999-5-114 .

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2 (2022)7 SCC 612.

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3 LAWS (BOM)-2019-9-109.

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 Page No. 5 of 7

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28 November 2023

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Chitra Sonawane.Cri.Appeal-927-2006.doc

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11.The defence of the respondent is that he had purchased
the insecticides from Rahul Organic, of which Gopal Rathi
was the proprietor. The cheque in question was given to the
complainant as a security for the purchase of insecticides.
However, the Zilla Parishad rejected the insecticides, and the
respondent asked the complainant to return the cheque.
However, nothing is on record even to indicate that the
insecticides were purchased from Rahul Organic or that they
were sub-standard.

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12.The accused/respondents were acquitted only on the
ground that the drawer herself had not issued the mandatory
notice. The signature of the proprietress of the appellant firm
on the Power of Attorney, attested by the Special
Metropolitan Magistrate, is not at all challenged by the
respondents. The authorisation of issuing notice went
unchallenged during the course of the trial. Moreover, the
statutory notice is on the letterhead of the appellant firm. The
accused’s defence was that he had purchased the insecticides
from Rahul Organic, of which Gopal Rathi was the
proprietor. However, the disputed cheque was in the name
of Rahul Agro Input Industries, not Rahul Organic. Mrs Vina
Rathi is the proprietress of Rahul Agro Input Industries.

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 Page No. 6 of 7

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28 November 2023

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Chitra Sonawane.Cri.Appeal-927-2006.doc

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Additionally, in the statement recorded under Section 313
CrPC, the accused admitted that he received the legal notice
and despite the receipt of the notice, he did not pay the
cheque amount. The learned trial Court should have
considered and discussed all these aspects of the matter,
however, it failed to address these issues.

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13.In the light of the above analysis and discussion, the
impugned judgment and order is set aside, and the matter is
remitted to the trial Court with a direction to hear the parties
and record its findings on all the issues discussed hereinabove
and shall decide the matter afresh in accordance with the law,
preferably within three months from the date of appearance
of the parties. The parties shall appear before the trial Court
on 04.12.2023.

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[R. N. Laddha, J.]

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 Page No. 7 of 7

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____________________________________________
28 November 2023

M/S. Rahul Agro Input Industries v. Vikas Misal and Ors.

Case brief

What is this about?

What did the court decide?

M/S. Rahul Agro Input Industries v. Vikas Misal and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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