Vinod Vyankat Narsaih Gannu vs Sunil Diwakar Poshattiwar And Anor on 16 January, 2020

[Cites 4, Cited by 0]

Bombay High Court

Vinod Vyankat Narsaih Gannu vs Sunil Diwakar Poshattiwar And Anor on 16 January, 2020

Bench: S.M. Modak

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPEAL NO.636 OF 2006

Appellant : Vinod Vyankat Narsaih Gannu,
Original Complainant Aged about 45 years, Occupation : Business,
R/o 304, Deogiri, 37, Cement Road,
Shivaji Nagar, Nagpur
Duly represented through his constituted
Power of Attorney Holder - Prakash Sambashiv
Chepurwar, aged about 68 years,
R/o 772, Ramnagar, Telangkhedi, Nagpur.

-- Versus --

Respondents : 1] Sunil Diwakar Poshettiwar,
Original Accused Aged about 43 Years, Occupation - Business,
R/o 182, Gokulpeth, Nagpur.

2] The State of Maharashtra.

WITH

CRIMINAL APPEAL NO.637 OF 2006

-- Versus --

Respondents : 1] Sunil Diwakar Poshettiwar,
Original Accused Aged about 43 Years, Occupation - Business,
R/o 182, Gokulpeth, Nagpur.

2] M/s. P.G. Pharma,
Registered Partnership Firm, 182,
Gokulpeth, Nagpur -

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duly represented through its Partner
Shri Sunil Diwakar Poshettiwar.

3] The State of Maharashtra.

=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
Shri N.R. Saboo, Advocate for the Appellant.
Shri N.S. Badhe, Advocate for Respondent No.1.
Shri A.S. Ashirgade, A.P.P. for the State.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

CORAM : S.M. MODAK, J.
RESERVED ON : 22nd OCTOBER, 2019.
PRONOUNCED ON : 16th JANUARY, 2020.

COMMON JUDGMENT :

The issues involved in these two appeals are -

(1) Whether the accused has rebutted the presumption

under Section 139 of the Negotiable Instruments Act?

(2) Whether on the basis of available evidence (without

producing any document/giving evidence), can it be said

that the accused has discharged his burden?

(3) Whether, five cheques in one case are said to be

defective for not having two signatures on behalf of the

firm?

02] The cases for failure to pay the amount of dishonoured

cheques have been dealt with by the trial Magistrate. The present

respondent-accused has been acquitted. Those cases have got a

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background. The complainant is a Non-Resident Indian (NRI). He has

formed a partnership in the year 2001 with the respondent-accused.

The business of the firm was of manufacturing, distributing and

marketing of Ayurvedic and other products. The firm's name was

M/s. P.G. Pharma.

03] The amount of ₹18.00 lakhs was brought into India in dollars

by the complainant and it was invested with the firm M/s. P.G. Pharma.

The firm was appointed as a Clearing and Forwarding Agent by three

companies. These three companies have accepted deposits from the

firm. The amount invested by the complainant to the tune of ₹18.00

lakhs was used towards the deposits kept with those three companies.

The business run well for two years.

04] When both the partners decided to discontinue the business

of two companies from 01/04/2003, accused - Sunil has undertaken

the responsibility to get refund of the deposits. In case of failure, he

has undertaken the responsibility to reimburse 50% from that amount

to the complainant. Memorandum of Understanding (MoU) was

executed on 7th April, 2003. There is a reference of giving cheques

drawn on personal account of accused - Sunil. These cheques have to

be utilized in case of failure of Sunil to get return of the deposits

amount from the companies.

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FILING OF COMPLAINT

05] The complainant filed S.C.C. No.853/2003 and S.C.C.

No.854/2003. The first case is for dishonour of five cheques. Those

cheques were drawn on the account maintained by the firm in Union

Bank of India and signed by accused - Sunil. He is accused No.1,

whereas, firm has been impleaded as accused No.2. These cheques are

issued in view of the commitment given by the accused Sunil. There is

no reference in the MoU about issuance of these cheques. Whereas,

S.C.C. No.854/2003 was filed for dishonour of a single cheque drawn

by accused on his personal account maintained in Union Bank of India.

He is the sole accused therein.

06] The complainant deposited all the six cheques. The five

cheques involved in S.C.C. No.853/2003 were dishonoured for the

reason "funds insufficient". Their total amount is ₹18.00 lakhs.

Whereas, a single cheque involved in S.C.C. No.854/2003 was

dishonoured for the reason "stop payment". Notices were issued. In

spite of the receipt, there was a failure to pay the amount and that is

why the complainant filed two separate cases before the Court of

Judicial Magistrate First Class at Nagpur.

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EVIDENCE

07] The complainant gave evidence separately in both these

cases. Whereas, accused examined one Janardhan Gajbhiye, Assistant

Manager from Union Bank of India in both these cases. The learned

Magistrate was pleased to acquit the accused in both the cases.

DEFENCE OF ACCUSED

08] The defence of the accused was multifold. It is as follows :-

(a) The complainant received 10 cheques of ₹1.00 lakh each

from M/s. Triveni Pharma, so also the complainant received

two cheques of ₹3.50 lakhs from M/s. Himtaj Ayurved Pvt. Ltd .

Those cheques were for discharge of liability towards return

of deposits.

(b) He has further contended that the complainant has not

returned the cheques issued by him and has misused them.

arranging for return of deposits and is not concerned with the

fate of those cheques issued by two companies.

(d) He has further pleaded that ₹4.00 lakhs are transferred from

the account of the firm to the complainant and in this way,

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the liability arising out of his personal cheque for ₹5.00 lakhs

does not remain.

DECISION

09] Trial Court has accepted the defence put forth by the accused

and has concluded that the presumption is rebutted. Finally, it has

resulted into acquittal of the accused in both the cases. The

complainant has approached this Court thereby challenging decision

dated 19/08/2006.

10] At great length, I have heard learned Advocate Shri Saboo

and learned Advocate Shri Badhe for the complainant-appellant and

the accused respectively in both these appeals. Criminal Appeal

No.637/2006 and Criminal Appeal 636/2006 are preferred against the

decisions in S.C.C. No.853/2003 and S.C.C. No.854/2003 respectively.

COMMON JUDGMENT

11] I have perused the record with their assistance and also the

judgments relied upon by them. The trial Court has delivered a

common judgment in both the cases. I have tried to understand the

facts and the evidence from the said judgment. But, the learned trial

Judge has mixed up the facts in both the cases and made the

discussions very clumsy.

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PRECAUTION

12] The complainant and the defence witness viz. Shri Gajbhiye

gave evidence separately in both these cases. If the trial Court has

decided to give a common judgment, it ought to have taken more

precautions in discussing the evidence separately. I am not criticizing

the trial Court for giving a common judgment. The background and

the foundation for filing two separate cases is the same and that is the

liability arising out of the MoU. Though there is a separate cross-

examination and some of the defences are separate. So to say reasons

for dishonour are different and in S.C.C. No.854/2003, the accused has

taken additional defence of payment of ₹4.00 lakhs out of liability of

₹5.00 lakhs from the single cheque. For these reasons, I say that in a

common judgment, the trial Court has made it complicated for a

reader to understand the discussions and the reasonings.

REASONINGS BY THE TRIAL COURT

13] The learned Advocate Shri Saboo for the complainant has

helped a lot to this Court while understanding the evidence. When,

this Court has culled out the reasonings from the common judgment,

they are as follows :

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(a) The complainant has admitted receipt of ten cheques of

₹1.00 lakh each from M/s. Triveni Pharma (in the cross-

examination conducted in S.C.C. No.854/2003).

(b) The complainant has admitted about receipt of two cheques

of ₹3.50 lakhs from M/s. Soumya Trade Links around March,

2003. (in the cross-examination conducted in S.C.C. No.

854/2003).

in case of failure on the part of Sunil to recover the amount

deposited with those two companies.

(d) In view of the admissions mentioned above, the liability of

Sunil had not arisen.

14] It is difficult to understand that the reasonings are given in

which case. The background and foundation for both the cases is one

and the same and i.e. MoU (only difference is in S.C.C. No.853/2003,

there are five cheques issued on the bank account of the firm, whereas

in S.C.C. No.854/2003, the cheque was issued by the accused on his

personal account). So, we have to consider the reasonings reproduced

above as reasonings given for both the cases. I will have to test the

correctness of those reasonings. The arguments of both the learned

Advocates are useful in this regard.

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MEMORANDUM OF UNDERSTANDING

15] There are ways and means to prove a document. The

complainant is a signatory to the said MoU, dated 07/04/2003.

Another signatory is the accused. At some places, the accused tried to

raise a dispute about voluntary execution of the said MoU. But, if the

tenor of the cross-examination is read, we can find that the accused

had also formed his defence on the basis of the contents of the MoU

only. So, we can read it's contents. Broadly, the MoU contains the

following provisions :

(a) Decision to stop business of the firm as Clearing and
Forwarding Agent (CFA) of two companies viz. M/s. Triveni
Pharma and M/s. Himtaj Ayurved Pvt. Ltd. It is from 1 st April,
2003.

(b) Decision was agreed to be communicated to these two
companies. The amount recoverable from -

[i] M/s. Triveni Pharma is ₹10.00 lakhs (deposit), ₹1.08
lakh (interest), ₹0.97 lakh (commission) and ₹0.25 lakh
(for TDS);

[ii] M/s. Himtaj Ayurved Pvt. Ltd., the amount recoverable
was ₹58,473/- (interest), ₹99,875/- (commission) and
₹11,148/- (TDS) and

[iii] the amount paid to M/s. S.P. Pharma was paid by the
complainant and it be paid from the account of the firm
and it will be shared by both the partners.

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(c) Within two weeks from closing the operation, the accused
Sunil has agreed to bring back the dues from M/s. Triveni
Pharma and from M/s. Himtaj Ayurved Pvt. Ltd.

(d) In case of failure to repay by the two companies , the accused
agrees to pay half of the total amount and full amount of
interest to the complainant.

(e) Issuance of cheque - In case of non-receipt from the two
companies, accused had given his personal cheque to the
complainant with authority to lodge the cheque for
encashment, if the payment is not received within 15 days
from expiry of two weeks.

(f) Handing over the control of the firm's business to the
complainant - This will happen, if the payment will not be
received from two companies.

(g) Business restraint clause - There was restriction on the
accused to do the business in any manner with the two
companies till the account is settled with the firm.

SUBMISSION

16] Both the learned Advocates for the parties have argued much

on the issue of creation of the liability of the accused and the

circumstances in which the liability will be created. According to

learned Advocate Shri Saboo for the appellant, the liability of accused

had arisen :

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(a) as he has failed to recover the deposit from the two

companies within two weeks from 01/04/2003;

(b) the accused cannot be exonerated from this liability merely

because the complainant has admitted about receipt of

certain cheques from these two companies;

the MoU and

(d) once the signature is admitted, presumption under Section

139 of the N.I. Act comes into picture.

For that purpose, he relied upon the judgment in the case of

K. Bhaskaran vs. Sankaran Vaidhyan Balan & another reported

in AIR 1999 SC 3762. There cannot be any dispute about the said

proposition. At the same time, it is true that such presumption can be

rebutted by the accused in a different manner.

17] He also relied upon the judgment in the case of P.

Lakshmanapillai vs. A. Elangovan & another reported in 2012

SCC ONLINE MAD 521. It was on the point of rebutting the

presumption by the accused and how the defence of the accused can

be negated. In that case, the issue was whether the cheque was

issued as a security. Through the accused, the complainant lent

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amount to various persons. The accused stood surety for repayment of

those amounts. The accused took a defence that cheques issued by

him were duly cancelled by the complainant when he received the

amount from his borrowers. This theory was not accepted by the trial

Court and by the appellate Court and even it does not appeal to the

conscious of the High Court. In that case, even the accused entered

into the witness-box.

18] The complainant also relied upon the judgment in the case of

Dr. Kailash Madanlal Charkha vs. Sayyad Khwaja s/o Sayyad

Noor & another in Criminal Appeal No.66 of 2006, this Court set

aside the judgment of acquittal and convicted the accused. The

complainant's evidence was challenged on so many factors including

his financial capacity and misusing the blank cheque. The accused

examined his father. This Court discussed about rebuttal of

presumption by the accused on facts, but the Court did not accept

rebuttal of presumption by the accused.

Whereas, according to the learned Advocate Shri Badhe for the

respondent-accused -

(a) The creation of a liability on the basis of happening of an

event is not contemplated under the provisions of the

Indian Contract Act.

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(b)Receipt of cheques from the two companies (as admitted by

the complainant) has exonerated the accused.

cheques issued to the complainant are dishonoured.

19] On the point of scope of interference by the appellate Court,

learned Advocate Shri Badhe for the respondent - accused relied upon

the judgment in the case of K. Prakashan vs. P.K. Surenderan

reported in 2007 CJ (SC) 546. The Hon'ble Apex Court observed that

if two views are possible, the appellate Court should not reverse the

judgment of acquittal only because another view is possible. The

jurisdiction of the appellate Court is limited.

CONCLUSION

20] I reject the contention of learned Advocate Shri Badhe for the

respondent-accused that liability on the basis of such clause will not

accrue. There may be uncertainty about when the payment can be

recovered. But, the person from whom the money is to be recovered

has been specified. So, the uncertainty as echoed by learned Advocate

Shri Badhe does not fall within the uncertainty recognized by law. But,

for different reasons, I agree with learned Advocate Shri Badhe for the

accused and with the reasonings given by the trial Court. The

complainant was cross-examined at length in S.C.C. No.854/2003.

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There were certain questions put about interconnection in between

M/s. Triveni Pharma and M/s. Universal Medikit. They were denied.

Finally, the complainant accepted the receipt of 10 cheques of ₹1.00

lakh each. The complainant, has expressed ignorance about details

including cheque numbers and drawee bank of those cheques.

21] The learned trial Judge has emphasized on this admission of

the complainant. There is one more admission given by the

complainant that M/s. Soumya Trade Links had issued two cheques of

₹3.50 lakhs each to the firm in which the complainant is a partner. It is

around March, 2003. On presentation, they were dishonoured. M/s.

Soumya Trade Links is connected to M/s. Himtaj Ayurved Pvt. Ltd.

There is an attempt to point out the copy of evidence given by the

complainant in a case instituted in respect of those cheques by M/s.

Soumya Trade Links. The trial Court has referred to the said evidence.

I am not considering the evidence for the reason that it was not shown

to the complainant during cross-examination. But, receipt of two

cheques is admitted by the complainant.

22] It is not clear as to, whether the cheques from these two

companies were issued within 15 days of the MoU and due to

persuasion by the accused. Be that as it may, the clause about

compliance in 15 days is not strictly adhered to. Though there may not

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be a strict compliance, but, if there is a substantial compliance, I do

not think that the liability as per the MoU can be fastened on the

accused. There are also several reasons why I have taken this view

thereby confirming the trial Court's view.

23] There are no documents to show about settlement of the

dues in between these two partners except the MoU. So also, no

accounts statements have been filed. If they are with the accused, the

complainant has not taken any steps before the trial Court asking the

accused to produce them. No one from the side of these two

companies was examined before the trial Court. It is even not made

clear, what has happened about those ten cheques issued by the M/s.

Triveni Pharma.

24] The complainant was also cross-examined on the point of

continuance of the business of company and dissolution of the firm (It

was in S.C.C. No.853/2003). Though he denied the dissolution of the

firm, he was not aware about completion of closing formalities and still

whether they continue to be the partners. It seems that the

complainant was only convinced up to execution of the MoU. It is also

true that there is a clause in the MoU about closing down the business,

if the dues are not recovered from two companies. But after the MoU,

there is no correspondence placed before the trial Court throwing light

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on protest about failure of commitment by the accused to arrange

return of deposits and continuance of the business.

25] Because, if at all the business is to be closed down, there has

to be settlement of accounts and there has to be arrangement of the

stock, which was procured as a Clearing & Forwarding Agent in an

ordinary course. Such kind of evidence is not there. An attempt was

made on behalf of the accused to put a suggestion that ₹4.00 lakhs

are transferred from the bank account of the firm to the individual

account of the complainant and it was in respect of fulfillment of the

liability of M/s. Triveni Pharma. However, it was denied by the

complainant (It is in cross-examination conducted in S.C.C.

No.853/2003). There was a further suggestion that out of remaining

amount of ₹6.00 lakhs with M/s. Triveni Pharma, this deposit will be

considered as a deposit for and on behalf of M/s. Dhanlaxmi Pharma.

M/s. Dhanlaxmi Pharma was permitted to carry on the same business

by the complainant. They are also denied.

26] Any business cannot be closed down easily. There are number

of formalities including reducing the terms into writing, informing the

creditors and depositors etc.. The tenor of the cross-examination shows

that there was deliberation and discussion amongst these two partners.

The complainant during his evidence has not brought them on record.

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Even he has not clarified about getting cheques from M/s. Triveni Pharma

and M/s. Soumya Trade Links. He admits it, when put during cross-

examination. It will also be material to look into the total amount of these

six cheques. It comes to ₹23.00 lakhs (₹18.00 lakhs in S.C.C.

No.853/2003 and ₹5.00 lakhs in S.C.C. No.854/2003). The accused has

undertaken the responsibility to pay 50%, if those two companies will not

return the deposits as per his follow up. If we consider the figures

mentioned in the MoU as an amount recoverable from these two

companies on one hand and the amount of ₹23.00 lakhs on the other, it

is not clear whether the amount of cheques is really 50%, less or more.

27] So, there is a reason to believe that the complainant has left

so many issues untouched while giving evidence. He simply relied on

the MoU and issuance of cheques. The accused has suggested the

complainant that the cheques given by him were agreed to be

returned, once the complainant will get the amount from these two

companies. It has been denied. It is true that MoU mentions about

issuance of cheque by the accused in his personal name. But, there is

no reference of the cheques issued by accused - Sunil on the bank

account of the firm. The complainant has also not produced any

additional documents. Hence, there is every reason to believe that the

accused has rebutted the presumption. He has done it on the basis of

the available material and by cross-examining the complainant. There

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is no reason to disagree with the reasonings given by the trial Court.

Though the complainant was punctual while forming the partnership

and registering it, it seems that for some reason or other, proper

documentation has not been done when both have decided to

discontinue the business with the two companies. Ultimately, the

Court is concerned with the evidence which has been brought before

the Court and not to the evidence which has not produced before the

Court.

REASONS FOR DISHONOUR OF CHEQUES

28] In both the cases, reasons for dishonour are different.

S.C.C. NO.854/2003

29] The complainant relied upon the judgment in the case of

NEPC Micon Limited & others vs. Magma Leasing Limited

reported in 1999(3) SCALE 67. It was on the point of attracting the

provisions of Section 138 of the N.I. Act, even though cheque is

dishonoured for the reason "account closed". In S.C.C. No.854/2003,

the cheque was issued by the accused on a personal account. The

memo at Exh.26 mentions the reason 18 on page 1, whereas on the

back side reasons 18 & 23 are encircled. The reason 18 says about

"stopping the payment", whereas reason 23 says about "insufficient

funds". Witness Janardhan Gajbhiye was examined by the accused.

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He admits that payment was stopped by the drawer. He was also

cross-examined on the point of his knowledge about the account of the

firm. In the statement under Section 313 of Cr.P.C., the accused has

answered that he gave 'stop payment' instruction when the cheque

was lost. The theory of losing the cheque is after thought and not

suggested to any of the witnesses. Stop payment instruction can

absolve the drawer of the cheque only when he can show that there is

a bona fide dispute with the payee and in addition to that there is a

sufficient balance in the account. So, 'stop payment instruction' has to

be believed as the only reason for dishonour. It certainly come with

the purview of Section 138 of the N.I. Act. I agree with the reasonings

given by the trial Court in its judgment at paragraph 35. However,

accused succeeded in showing bona fide dispute about liability.

S.C.C. NO.853/2003

30] There is a different reason for dishonour of five cheques in

S.C.C. No.853/2003. It was due to insufficient funds. But, accused

made all attempts to bring on record that the cheques were defective

and at the material time, it require two signatures. As they were not

there, cheques were defective. He tried at his level best first to

examine witness Janardhan Gajbhiye, then recalling him and then

cross-examining him. Through him, the Specimen Card of the Bank

Account at Exh.65 was produced. It was dated 04/04/2002. The

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cheques were dishonoured in the month of July, 2003. Initially when

the account was opened on 16/10/2000, instructions were given for

handling the account by any one. The witness admits that Specimen

Card contains the instructions "operation joint" from 04/04/2002.

However, when Exh.65 is produced, we will not find such endorsement.

It is not clearly legible, but the instruction says that any one can

operate the account. So, his evidence is not helpful to the accused.

The learned Magistrate has not discussed this aspect while answering

issue No.3. We have to presume that these five cheques are

dishonoured for the reason "funds Insufficient".

31] The judgment in the case of Vinod Tanna & another vs.

Zaheer Siddiqui & others reported in 2001(2) Mh.L.J. 714 was

relied upon by the complainant. There is an instruction about

operating the bank accounts jointly, Section 138 of the N.I. Act is

attracted even though single director has signed. In this case, I have

already observed that instruction to operate the accounts jointly is not

proved by the accused.

CONCLUSION

32] I have already discussed the evidence about rebuttal of

presumption. I am not inclined to accept the theory of receipt of ₹4.00

lakhs by the complainant from the account of the firm. It is no doubt

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true that witness Janardhan Gajbhiye has admitted about transfer of

₹4.00 lakhs on 24/05/2003. The statement of account was filed at

Exh.51 through him in S.C.C. No.854/2003. The accused cannot pick

up one entry to show that this was towards the repayment of the

liability arising out of the cheque for ₹5.00 lakhs drawn by him on his

personal account. The accused needs to have produced evidence to

substantiate this payment. Unfortunately, the trial Court has accepted

this. As I have rejected the theory of the complainant, I am also

rejecting this theory.

FINAL CONCLUSION

33] I am upholding the findings of the trial Court partially, though

there is a reason to believe issuance of six cheques by the accused to

the complainant, on the basis of available evidence, there is a reason

to believe that accused is successful in bringing of lacunae in the

complainant's evidence on the point of debt or liability. So, I find no

reason to interfere in the trial Court's judgment. I am not considering

the copy of the judgment shown to me given by the Civil Court in

S.C.S. No.61/2004, dated 01/01/2011 in the recovery suit for ₹23.00

lakhs, which was dismissed by the Civil Court. It was not a certified

copy. There is a certain relevancy of the Civil Court's judgment. The

accused has not followed the procedure. For the above discussions,

the following order is passed.

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ORDER

I. Both the appeals stand dismissed.

II. The parties to bear their own costs.

(S.M. MODAK, J.) *sandesh ::: Uploaded on - 16/01/2020 ::: Downloaded on - 17/01/2020 08:52:15 :::

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