Punjab-Haryana High Court
Crm-A-790-Ma Of 2 vs M/S Atma Tube Products Ltd. & Others on 21 October, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM A-790-MA of 2010 along with 12 connected applications 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: October 21, 2013
1. CRM-A-790-MA of 2010
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
2. CRM-A-802-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
3. CRM-A-803-MA of 2010
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
4. CRM-A-804-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
5. CRM-A-809-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
6. CRM-A-837-MA of 2010 (O&M)
Kumar Virender
2013.11.26 16:57
I attest to the accuracy and
integrity of this document
CRM A-790-MA of 2010 along with 12 connected applications 2
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
7. CRM-A-845-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
8. CRM-A-849-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
9. CRM-A-850-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
10. CRM-A-851-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
11. CRM-A-867-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
Kumar Virender
2013.11.26 16:57
I attest to the accuracy and
integrity of this document
CRM A-790-MA of 2010 along with 12 connected applications 3
12. CRM-A-892-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
13. CRM-A-895-MA of 2010 (O&M)
Tata Steel Ltd. .... Petitioner
Versus
M/s Atma Tube Products Ltd. & Others ... Respondents
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see the
judgment?
2) To be referred to the Reporters or not?
3) Whether the judgment should be reported in the Digest?
Present: Mr. Deepak Sabharwal, Advocate,
for the petitioner(s).
Mr. V.K. Sachdeva, Advocate,
for respondent Nos. 1 and 2.
Paramjeet Singh, J.
All the above mentioned 13 criminal Misc. applications i.e. CRM-A-790-MA, 802-MA, 803-MA, 804-MA, 809-MA, 837-MA, 845- MA, 849-MA, 850-MA, 851-MA, 867-MA, 892-MA and 895-MA of 2010 have been listed together for hearing. All the above mentioned criminal Misc. Applications are being disposed of by a common judgment as these are between the same parties and common questions of law and facts are involved in these applications.
Kumar Virender2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 4 All the aforementioned criminal misc. applications have been filed under Section 378(4) read with Section 482 of the Code of Criminal Procedure for grant of leave to appeal against the impugned judgment dated 30.04.2010 passed by learned Judicial Magistrate Ist Class, Chandigarh, whereby respondents have been acquitted of the accusation under Section 138 of the Negotiable Instruments Act.
Brief facts of the case as mentioned in the impugned judgment are as under:-
"The complainant Company is a company incorporated and registered under the Indian Companies Act, 1956 and having its registered office at Bombay and its area sales office in SCO No. 16, 1st Floor Madhya Marg, Sector 26, Chandigarh and its Area Sales Manager Shri Saurav Dass Patnayak is its Controlling Officer and is lawful authority of complainant Company duly authorised by virtue of Special Power of Attorney dt. 11.07.1997 to file the present complaint. It is also averred that all the transactions of supplying of steel material to the accused No.1 is processed and released under his instructions. It is stated that the accused no.1 is dealing with the steel products and manufacturing thereof, entered into transaction with complainant company on credit basis and accordingly the steel material was supplied through Area Sales Manager of the complainant on the basis of the orders of supply received by complainant Company from the accused company. It is stated that all the orders were placed by the accused company through its competent and authorized person with full concurrence of all the Directors of the Company and in lieu of the supplied material the accused Company issued payees account cheques No. Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 5 0825383 dt. 23.10.1997 for Rs.2617700/- Ex.C1 (in complaint No. 14275 dt. 6.1.1998), No. 503685 dt. 29.09.1997 for Rs. 23,99,100/- Ex.C1 (in complaint case No. 14276 dt. 6.1.1998), No. 661988 dt. 21.9.97 for Rs.3627800/- Ex.C1 (in complaint No. 14267 dt. 27.11.1997), No. 0823987 dt. 26.9.97 Ex.C.1 amounting Rs. 2666000/- (in complaint no. 14264 of 27.11.1997), cheque No. 0825312 dt. 20.1.1997 for Rs. 1851800 Ex.C.1 (in complaint No. 14262 dt. 6.1.1998), cheque No. 503716 dt. 18.10.1997 for Rs.1761000/- Ex.C.1 (in complaint No. 14270 dt. 6.1.1998), cheque No. 0823992 dt. 28.9.97 for Rs. 3993600/- Ex.C2 (in complaint case No. 14260 dt. 6.1.1998), cheque No. 0825461 dt. 18.10.1997 for Rs.880500/- (in complaint No. 14257 dt. 6.1.1998), cheque No. 661987 dt. 24.9.97 for Rs. 3706000/- Ex.C.1 (in complaint case No. 14268 dt. 27.11.1997), cheque No. 661989 dt. 27.9.98 for Rs.1281900/- Ex.C.1 (in complaint case No. 142769 dt. 27.11.1997), cheque No. 315663 dt. 30.9.97 for Rs.1237000/- Ex.C1 (in complaint case No. 14263 dt. 6.1.1998), No. 831109 dt. 12.10.1997 for Rs.1899900/- Ex.C.1 (in complaint case No. 14266 dt. 27.11.97), No. 315662 dt. 16.10.97 for Rs.1041700/- Ex.C.1 (in complaint case No. 14265 dt. 2.1.1998) towards payment of material purchased by accused company during the period 22.8.1997 to 24.9.1997. These cheques were signed by accused no.2 Deepak Singh, Managing Director-cum-authorized signatory of the accused No.1. The accused No.2 gave full assurance that the Company is having sufficient funds in its bank accounts. Relying upon his assurance the complainant company presented these cheques in the account of accused Company. But all these cheques were received back dishonoured vide memo Bank vide Memo Ex.C.2, 8.11.1997 Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 6 (in complaint case No. 14276 dt. 6.1.1998) for the reason Not Arranged for, memo Ex.C.2 for the reasons Not arranged for (in complaint No. 14275 dt. 6.1.1998), bank memo dt. 10.10.1997 Ex.C.2 with remarks Exceeds Arrangement (in complaint No. 14267 dt. 27.11.1997), bank memo Ex.C.2 dt. 10.10.97 with remarks Not arranged for (in complaint No. 14264 of 27.11.1997), Bank memo Ex.C.2 dt. 6.11.1997 with remarks not arranged for (in complaint No. 14262 dt. 6.1.1998), bank memo dt. 6.11.1997 with remarks Exceeds Arrangements Ex.C.2 (in complaint case No. 14270 dt. 6.1.1998), vide bank memo dt. 8.11.1997 Ex.C2 with remarks Not arranged for (in complaint case No. 14260 dt. 6.1.1998), vide bank memo dt. 6.11.1997 with remarks Not arranged for Ex.C.2 (in complaint case No. 14257 dt 6.1.1998), vide bank memo dt. 10.10.97 Ex.C.2 with remarks Exceeds Arrangement (in complaint case No. 14268 dt. 27.11.1997), vide bank memo dt. 10.10.97 Ex.C.3 with remarks Exceeds Arrangements (in complaint case No. 142769 dt. 27.11.1997), vide bank memo Ex.C.2 with remarks Not arranged for (in complaint case No. 14263 dt. 6.1.1998), vide bank memo Ex.C.2 with remarks Not arranged for (in complaint case No. 14266 dt. 27.11.97), vide bank memo dt. 6.11.1997 Ex.C.2 with remarks Not arranged for (in complaint case No. 14265 dt. 2.1.1998). Following which the complainant Company issued legal notices Ex.C.3 dated 17.11.1997, P/receipt Ex.C.4, UPC Ex.C.5, AD Ex.C.7 (in complaint case No. 14276 dt. 6.1.1998), legal notice Ex.C.3 dt. 6.11.1997, P/receipt Ex.C.4 (in complaint No. 14275 dt. 6.1.1998), legal notice Ex.C.3 dt. 14.10.1997, P/receipt Ex.C.4 (in complaint No. 14267 dt. 27.11.1997) legal notice Ex.C.3 dt. 14.11.1997, P/receipt Ex.C.4 (in complaint No. 14264 of 27.11.1997), Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 7 legal notice Ex.C.3 dt. 17.11.1997, P/receipt Ex.C.4 UPC Ex.C.5, AD Ex.C.6 (in complaint No. 14262 dt. 6.1.1998), legal notice Ex.C.3 dt. 17.11.1997, P/receipt Ex.C.4, AD Ex.C.5, UPC Ex.C.6, (in complaint case No. 14270 dt. 6.1.1998), legal notice Ex.C.3 dt. 17.11.1997, P/receipt Ex.C.4, AD Ex.C.5, Ex.C.6 UPC (in complaint case No. 14260 dt. 6.1.1998), legal notice dt. 17.11.1997 Ex.C.3, P/Receipt Ex.C.4, UPC Ex.C.5, AD Ex.C.6 (in complaint case No. 14257 dt. 6.1.1998), legal notice dt. 14.10.1997 Ex.C.3 P/receipt Ex.C.4, (in compliant case No. 14268 dt. 27.11.1997), legal notice Ex.C.3 dt. 14.10.1997, P/receipt Ex.C.4 (in compliant case No. 14269 dt. 27.11.1997) legal notice dt. 17.11.1997 Ex.C.3, P/receipt Ex.C.4., UPC Ex.C.5, A.D. Ex.C.6 (in complaint case No. 14263 dt. 6.1.1998, legal notice Ex.C.3 dt. 15.10.1997, postal receipt Ex.C.4 (in complaint case No. 14266 dt. 27.11.97), legal notice dt. 17.11.1997 Ex.C.3, postal receipts Ex.C.4, AD Ex.C.5, UPC Ex.C.6, (in complaint case No. 14265 dt. 2.1.1998). However, despite receipt of legal notices, the accused failed to make the payment of the cheques in question within stipulated period of 15 days. Hence, the filing of the present complaints."
The complaints against accused nos. 3 and 4 were quashed by this Court vide order dated 07.11.2001 in eight complaints and in rest of the 5 complaints, complainant suffered a statement to drop the proceedings qua them and also dropped complaint against accused no.5, who was nominee Director. Notice of accusation was served upon respondent no.2
- Deepak Singh vide order dated 28.05.2003 to which he pleaded not guilty and claimed trial.
Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 8 After passing order of consolidation of all the complaints, the complainant examined witnesses CW Pawar Talwar, Special Assistant, Oriental Bank of Commerce, M.D. Tareja, Deputy Manager, State Bank of India, Pardeep Kumar Mahindru, Clerk, Vijaya Bank, B.P. Mehta, Manager, State Bank of India, Sushma Shukla Sood, Manager Credit, Bank of Baroda, Rajesh Singh, Head TOC, SFS Task Force, FP, Tata Seteel Ltd., Janmejaya Dass, presentative of MRH Enterprises.
Thereafter, accused was examined under Section 313 Cr.P.C.. He submitted a written statement in terms of Section 313(5) Cr.P.C. and opted not to lead evidence in his defence. After appreciation of evidence, the trial Court acquitted the accused. Hence, this application for leave to appeal.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner contended that the petitioner company had entered into a Memorandum of Understanding (in short 'MOU') with the respondent company dated 22.07.1997 and 23.07.1997. In pursuance of the MOU material was being supplied to it on credit basis. As per the contract, payment was to be made through Letter of Credit, Bank Guarantee or Post Dated Cheques and credit facility of 30 days was available to the purchaser. Learned counsel further contends that the cheques in question were given in pursuance to the delivery order and material received by the accused. All the 13 delivery orders and 99 invoices have been proved on record to show the liability of the accused Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 9 against the cheques in question. As such, presumption of being `holder in due course' arises in favour of the petitioner. Learned counsel further contended that no evidence has been led by the accused to rebut the fact of 13 delivery orders and 99 invoices on the basis of which material was supplied by the complainant company to the accused. Learned counsel further contended that the accused failed to rebut the lawful presumption by leading cogent and convincing evidence. Learned counsel further contends that the written statement cannot be read into evidence led by the accused because it is a mere statement and it cannot be termed as evidence because the complainant has not been given a chance to cross examine the accused or his witness in any manner. Learned counsel further contends that it is settled principle of law that if on service of first demand notice the drawer does not make the payment of cheque amount and no prosecution is launched against drawer, right of holder of the cheque to prosecute the drawer is not lost, he can present the cheque any number of times within its validity and can prosecute the drawer on second or any successive default. In support of his contentions, learned counsel relied upon judgments of Hon'ble Supreme Court in Goaplast Pvt. Ltd. vs. Shri Chico Ursula D'Souza and another, 2003(2) R.C.R. (Criminal) 131, Hiten P. Dalal vs. Bratindranath Banerjee, 2001(3) R.C.R. (Criminal) 460, MSR Leathers vs. S. Palaniappan and another, 2012(4) R.C.R. (Civil) 485, judgments of Hon'ble Bombay High Court in Chandrakant Laxman Kerkar vs. Sai Mundra Finance Pvt. Ltd., 2005(2) Bom. C.R. (Cri.) 59, Matoshri Cashew Nuts Goa vs. Mohammad Abdul Kadar, Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 10 2011(7) R.C.R. (Criminal) 1954 and judgment of Hon'ble Gujarat High Court in Girishbhai Natvarbhai Patel vs. State of Gujarat and another, 2006 CriLJ 3378.
Learned counsel for the respondents vehemently opposed the contentions raised by the learned counsel for the petitioner and contended that at the time of making of Contract dated 22.07.1997 and 23.07.1997, no cheque facility for purchase of material was granted to the respondents as the same had been withdrawn by the petitioner-complainant on 30.05.1997. Learned counsel further contended that it is a settled law that if on the date of issuance of cheque, there is no existing debt or liability or if the cheque has been issued for any future uncertain liability or if the cheque has been issued as security for performance of an agreement, in such cases, offence under Section 138 of Negotiable Instruments Act is not made out. Learned counsel further contends that it is settled law that statutory presumption under Section 139 of N.I. Act and Section 118 of Indian Evidence Act is rebuttable. Accused need not produce the direct evidence to rebut the presumption but can rebut the presumptions by extracting answers from the petitioner-complainant in the cross examination or by reference to the material produced by the petitioner itself. Respondent - accused is not required to prove beyond reasonable doubt. Learned counsel further contended that the finding recorded by the learned trial Court is based on the correct appreciation of evidence and is liable to be sustained. In support of his contentions, learned counsel for the respondents has relied upon judgments of Hon'ble Supreme Court in Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 11 Kamala S. Vs. Vidyadharan M.J. and another, 2007(2) Civil Court Cases 23 (S.C.), M.S. Narayana Menon @ Mani vs. State of Kerala and another, 2006(30 Civil Court Cases, 468 (S.C.), judgment of Hon'ble Kerala High Court in A.M. Perumal vs, Star Tours and Travels (India) Ltd., 2011(2) RCR (Criminal) 223 and judgment of Hon'ble Gujarat High Court in Jogindra R. Anand, Partner of Anand Tradiing Company vs. Ganaram B. Rathod and another, 2011(5) RCR (CriminaL 503.
The learned trial Court, after appreciating the evidence on record, observed as under:-
"15. This Court has carefully gone through the evidence led by the complainant and it is a proved and admitted fact that the complainant has withdrawn the cheque facility given to the accused company on 30.5.1997 and the same has not been restored upto 18.9.1997 when the complainant company returned the 50 cheques which were already in its possession. This Court find force in the submission made by the learned counsel for the accused that on 18.9.1997 when the 50 cheques were returned by the complainant company, there was no old outstanding as on that date and all the remaining 17 cheques were in possession of the complainant company prior to 30.5.1997 i.e. when the cheque facility was withdrawn. It is also an admitted fact that as the accused company was not given permission to the cheque facility after withdrawal of the cheque facility. The complainant's witness has also admitted these facts during his cross examination by stating that the complainant company refused to restore the cheque facility to the accused company from 30.5.1997 to 18.9.1997 and it also did not return all the cheques issued by Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 12 the accused company and failed to assign any reason for non returning of the entire cheques especially when there was no cheque facility granted by it. Thus, it is proved that the complainant company was holding the 13 cheques pertaining to present complaints prior to withdrawal of the cheque facility on 30.5.1997 and it did not return these cheques to the accused company despite having withdrawn the cheque facility on 30.5.1997. In this way it is clearly proved that the cheques pertaining to present 13 complaints were in the possession of the complainant company prior to 30.5.1997, i.e. before the alleged sale of material by the complainant company on 22.8.1997 to 24.9.1997 and due to this these cheques could not be said to be issued against any existing liability for the material supplied during 22.8.1997 to
24.9.1997. In this way the complainant has failed to prove that there was any existing debt or liability against the cheques in question. It is pertinent to mention here that for succeeding in these complaints, the complainant was required to discharge its initial burden i.e. it was required to prove that there was existing liability. But is miserably failed to prove the same.
16. Further, the complainant company initially filed complaints for dis-honour of 17 cheques amounting to Rs.3,83,90,000/- but later on 31.1.2006, withdrew 4 complaints involving an amount of Rs. 94,26,000/- by making statement that it has received the payments against these cheques. Here also there are some facts missing to complete the chain of facts alleged by the complainant because despite knowing the fact that initially complaint with regard to Rs. 3,83,90,000/- has been filed and that Rs.1,20,67,405/- are in excess, but only four complaints involving amount of Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 13 Rs.94,26,000/- were withdrawn. This clearly creates a doubt on the facts alleged by complainant. Even CW Rajesh has admitted in his cross examination that the complainant company presented criminal complaints with an excess amount of Rs.1,20,67,105/- which confirms that the complainant company had misused the blank cheques in its possession issued by the accused company with regard to its past transactions and it is an admitted fact that prior to withdrawal of cheque facility there was no outstanding towards accused. It is further admitted by the complainant's witness that before filing the complaints, the complainant did not check its records and the complaint were filed by mistake. Therefore, it is again a proved fact that in fact there was no existing debt or liability with regard to the cheques in question on the date of their presentation, which could bring these dishonoured cheques in the ambit of offence under Section 138 of the Negotiable Instruments Act. So far as contention of the learned counsel for the complainant that cheque numbers are mentioned on the delivery orders is not having any force because complainant witness has himself admitted that there was no cheque facility in favour of the accused company with regard to transactions between 22.8.1997 to 24.9.97 and that cheque facility was withdrawn on 30.5.1997, therefore complainant company could not have inserted the cheque numbers on its delivery orders.
17. Even if, it is presumed for the sake of arguments that the cheque numbers are mentioned on the delivery orders but the column of the amount on these delivery orders is admitted by the complainant witness to be blank, which itself show that the complainant company had the blank cheques in its possession, otherwise it should have filled the amount in the Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 14 delivery orders as written on the cheques.
18. Learned counsel for the accused also submitted that a bare perusal of the cheques also reveal that the handwriting in the body of the cheques is entirely different from the handwriting of the signatures of the accused. Here when the complainant has failed to prove facts beyond reasonable doubt on the basis of which a presumption as to existing liability could have been raised by this Court, therefore, it does not makes any difference whether any evidence is led by accused because there is no fact on record which is to be dis-proved or rebutted by the accused. In the present complaints the accused has not only shaken the credibility of complainant witness, but he has also been able to extract facts in cross-examination, on the basis of which it is clearly proved that there was no existing liability with regard to 13 cheques in question.
19. There is another aspect of the matter. Complainant company has contended that it supplied material worth Rs. 2,63,22,894/- during the period 22.8.1997 to 24.9.1997 whereas the accused company contended that during the same period it had made the payments worth Rs.
2,69,58,072/- by way of demand drafts in favour of the complainant company and further contended that accused company does not owe any amount to the complainant company on the basis of its account statement for the said period DX-3. Complainant company failed to produce its statement of accounts or bank statements on the pretext that since it is seven years old record, the same has been destroyed, but at the same time it has produced its invoices and delivery orders for the same old period. This clearly establishes that the complainant company did not produce its Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 15 records of receipt of payments or its account books intentionally and in this way it failed to prove the liability against the accused company. Here mere production of invoices by itself does not prove that these invoices were not paid by the accused company. On the other hand it is a fact that the Invoices and delivery orders have not been proved in accordance with law of evidence and thus remain unproved because the complainant failed to examine the authors of the invoices and also failed to prove the delivery orders in accordance of S. 65-B of the Indian Evidence Act. Complainant company was legally bound to prove the fact that it has not received any payments as reflected in the accounts statement of the accused company DX-3, but it failed to do so. Thus, in the absence of any accounts statement of the complainant company, it cannot be said that there was any existing liability against the invoices raised by it. In this way, statutory presumption as available under S. 118 of the Indian Evidence Act and S. 139 of the Negotiable Instruments Act, also does not help the complainant company as accused had discharged the onus or rebutting the presumption by extracting the answers from the witness of the complainant and by confronting the complainant's witness with its accounts statements that it has made the payments and there was no liability against the cheques in question. The complainant has failed to prove any existing liability of accused beyond the reasonable doubts, due to which no legal presumption can be raised according to provisions of Negotiable Instruments Act. On the other hand the accused has successfully proved that the cheques in question were not issued by him in discharge of any existing liability and there is nothing which is to be rebutted by the accused. Therefore, Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 16 the complainant has failed to prove its liability and the accused could not be said to have committed any offence under S. 138 of the Negotiable Instruments Act Case law cited by the learned counsel for the complainant company is clearly distinguishable as the facts and circumstances of the present case are totally different. Hence this Court comes to the conclusion that on the date of issuance of all these 13 cheques, there was no existing liability or debt and all the cheques were lying blank in the possession of the complainant company prior to 30.5.1997 as collateral security of past transactions and are in no way concerned with transactions between 22.8.97 to 24.9.97.
20. This Court also find force in the contention of the learned counsel for the accused that 5 complaints bearing No. 14265 dt. 2.1.1998 pertaining to cheque No. 315662 dt. 16.10.1997, complaint case No. 14257 dt. 6.1.1998 pertaining to cheque No. 0825461 dt. 18.10.1997, complaint case No. 14270 dt. 6.1.1998 pertaining to cheque No. 503716 dt. 18.10.1997, complaint case No. 14662 dt. 6.1.1998 pertaining to cheque No. 0825312 dt. 20.1.1997 and complaint case no. 14275 dt. 6.1.1998 pertaining to cheque no. 0825383 dt. 23.10.1997 have been instituted on the basis of second notice. Issuance and service of first notice has been admitted by the complainant company in the legal notice itself which were sent by their counsel and the complaints have been instituted thereafter after the period of limitation and after the cause of action had expired from service of first notice. Thus, these 5 complaints are also liable to be dismissed, being time barred in view of law laid down by Hon'ble Apex Court in Sadanandan Bhadran vs. Madhavan Sunit Kumar, 1998(6) JT 48 and in Prem Chand Vijay Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 17 Kumar vs. Yash Pal, 2005(5) JT 318. Once the complainant has failed to prove that there is any liability against the accused company, the accused no.2 is also not liable for an offence under S. 138 of the Negotiable Instruments Act in terms of S. 142 of the N.I. Act and it has no relevance to examine whether he was Incharge and responsible for the affairs of the accused company or not during the relevant period and whether he committed any alleged offence or not....."
I have perused the findings recorded by the learned trial Court and with the assistance of the learned counsel for the parties perused the evidence led by the parties.
It would be appropriate to refer to the statement of complainant witness Mr. Rajesh Singh, who in his cross-examination has admitted following things:-
i) Without seeing the record, I cannot tell whether the complainant company has stopped the cheque facility and supply of material to the accused company against current dated cheques or post-dated cheques from 30.05.1997;
ii) It is correct that letter dated 30.5.1997 has been issued by complainant company under the signatures of Saurav Dass Patnaik to the accused company and the same has also been admitted by me regarding its issuance in the reply filed before the Hon'ble High Court;
iii) It is correct that no material has been supplied to the Atma Tube Products Limited against current dated cheques after withdrawal of cheque facility on 30.5.1997;Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document
CRM A-790-MA of 2010 along with 12 connected applications 18
iv) It is correct that Ex.D-8 (letter dated 14.8.1997) requesting to restore the cheque facility was received in our office sent by Atma Tube Products Ltd.;
v) It is correct that our company refused to restore the cheque facility to the accused company;
vi) Ex.D9 has been issued on 8.9.1997 by the complainant company to accused company for withdrawing the cheque facility;
vii) It is correct that all the cheques which were lying with our company were not returned to the accused company after withdrawal of the cheque facility;
viii) It is correct that our company has returned 50 cheques of different numbers as marked in Ex.D10 against the old outstanding of the accused company;
ix) Referring to Ex.D-10, the complainant company did not have out outstanding with the accused company prior to 18.08.1997;
x) It is correct that it is not mentioned in this letter Ex.D10 that there was any liability against the accused company upto 18.08.1997;
xi) It is correct that at the time of institution of criminal complaints against respondent-accused company, our company ha snot checked its record;
xii) It is correct that the complainant company has presented criminal complaints with an excess amount of Rs.1,20,67,105/-;
xiii) It is correct that the goods received note have not been attached with the invoices mentioned above;
Kumar Virender2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 19
xiv) I cannot answer the question regarding the fact that the receipts of payments made by the accused company during the period 22.08.1997 to 24.09.1997 were intentionally destroyed.
Besides this, Mr. Janmejaya Dass, representative of some MRH Enterprises, Chandigarh, who appeared as a complainant witness, admitted the following things:-
i) It is correct that no document has been placed on record along with my affidavit to show that there was any contract between Tata Steels Ltd.
and MRH Enterprises in 1997;
ii) It is correct that delivery number 13 and 99 invoices attached with my affidavit are not the record of MRH Enterprises;
iii) It is correct that in all the 13 delivery orders, the column after the cheque number is blank and no amount of cheque is mentioned;
iv) It is correct that the original delivery orders were not sent to the customers.
The evidence clearly indicates that at the time of execution of contracts on 22.07.1998 and 23.07.1997 no cheque facility for purchase of material was granted by complainant company, rather same was withdrawn on 30.05.1997 vide letter dated 30.05.1997 (Ex.D7). Thus, the contention of the applicant-company that in the contracts it is mentioned that material will be supplied on the basis of post-dated cheques is false and incorrect. The learned Judicial Magistrate has taken a view after appreciating the evidence that the cheque facility was withdrawn by the complainant company on 30.05.1997 and the same is admitted by the complainant's Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 20 witness and after the withdrawal of cheque facility, all the cheques were not returned by the company which were taken in advance. 50 cheques were returned on 18.09.1997 which is clear from Ex.D10 and 17 cheques were lying with the complainant company as blank cheques prior to 30.05.1997. In view of the admissions of the complainant's witness that cheque facility was not provided then the question of using those cheques does not arise. Further, civil suit was filed by the complainant company that total principal amount recoverable is Rs. 2,63,22,894-20 paise for the material supplied and bills raised by the complainant company during the period 22.08.1997 to 24.09.1997. As per own statement of the complainant, as on 22.08.1997, no amount was due and payable by the respondent-accused and during this period, the respondent was not having any cheque facility. It is one of the conditions that material can be supplied only on the basis of post-dated cheques. Since the facility was not there so the question of supply of material does not arise. The view taken by the learned Magistrate is a possible view.
Their Lordships of the Supreme Court in 'Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748', held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. This view has been reiterated in State of Goa v. Sanjay Thakran, (2007) 3 SCC 755', and 'Chandrappa v. State of Karnataka, (2007) 4 SCC 415'.
A Division Bench of this Court in 'State of Punjab v. Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 21 Hansa Singh, 2001(1) RCR (Criminal) 775', while dealing with an appeal against acquittal, has opined as under:-
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis- reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
In 'Mrinal Das & others v. The State of Tripura, 2011(9) SCC 479', decided on September 5, 2011, the Hon'ble Supreme Court, after looking into many earlier judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference. When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed."
Similarly, in the case of 'State of Rajasthan v. Shera Ram alias Vishnu Dutta , (2012) 1 SCC 602', the Hon'ble Supreme Court has observed as under:-
Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document
CRM A-790-MA of 2010 along with 12 connected applications 22 "7. A judgment of acquittal has the obvious consequence of granting freedom to the accused. This Court has taken a consistent view that unless the judgment in appeal is contrary to evidence, palpably erroneous or a view which could not have been taken by the court of competent jurisdiction keeping in view the settled canons of criminal jurisprudence, this Court shall be reluctant to interfere with such judgment of acquittal.
8. The penal laws in India are primarily based upon certain fundamental procedural values, which are right to fair trial and presumption of innocence. A person is presumed to be innocent till proven guilty and once held to be not guilty of a criminal charge, he enjoys the benefit of such presumption which could be interfered with only for valid and proper reasons. An appeal against acquittal has always been differentiated from a normal appeal against conviction. Wherever there is perversity of facts and/or law appearing in the judgment, the appellate court would be within its jurisdiction to interfere with the judgment of acquittal, but otherwise such interference is not called for."
Thereafter, in the above case a large number of judgments were discussed and then it was opined as under:-
"10. There is a very thin but a fine distinction between an appeal against conviction on the one hand and acquittal on the other. The preponderance of judicial opinion of this Court is that there is no substantial difference between an appeal against conviction and an appeal against acquittal except that while dealing with Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 23 an appeal against acquittal the Court keeps in view the position that the presumption of innocence in favour of the accused has been fortified by his acquittal and if the view adopted by the High Court is a reasonable one and the conclusion reached by it had its grounds well set out on the materials on record, the acquittal may not be interfered with. Thus, this fine distinction has to be kept in mind by the Court while exercising its appellate jurisdiction. The golden rule is that the Court is obliged and it will not abjure its duty to prevent miscarriage of justice, where interference is imperative and the ends of justice so require and it is essential to appease the judicial conscience."
One of the additional grounds taken by the applicant in CRM- A-850-MA-2010, CRM-A-851-MA-2010, CRM-A-867-MA-2010, CRM- A-892-MA-2010 and CRM-A-895-MA-2010 is that on the basis of second notice, complaint is maintainable. This position of law is not in dispute. On the basis dishonour on successive presentation of cheque during its validity period, the complaint is maintainable. To that extent, finding in the impugned order with regard to respective complaints being time barred is wrong, but otherwise on merit, as discussed above, these applications are not sustainable in view of specific finding that there was no existing debtor liability for which cheques were issued.
Learned counsel for the petitioner has failed to show any error of law or on facts on the basis of which interference can be made by this Court in the judgment under challenge.
In view of the above, I do not find any merit in the above Kumar Virender 2013.11.26 16:57 I attest to the accuracy and integrity of this document CRM A-790-MA of 2010 along with 12 connected applications 24 mentioned applications.
As such, all the aforementioned 13 applications for leave to appeal are dismissed.
October 21, 2013 [ Paramjeet Singh ]
vkd Judge
Kumar Virender
2013.11.26 16:57
I attest to the accuracy and
integrity of this document