Punjab-Haryana High Court
M/S Sham Timber Traders vs M/S Prajapati Timbers & Anr on 1 February, 2016
Author: Inderjit Singh
Bench: Inderjit Singh
209
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM No.A-861-MA of 2013 (O&M)
Date of decision: February 01, 2016
M/s Sham Timber Traders
...Applicant
Versus
M/s Prajapati Timbers and another
...Respondents
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Namit Khurana, Advocate
for the applicant.
****
INDERJIT SINGH, J.
CRM No.44039 of 2013 Heard.
For the reasons mentioned in the application, the same is allowed. Delay of 25 days in filing the application seeking leave to appeal, is condoned.
CRM No.A-861-MA of 2013 Applicant-M/s Sham Timber Traders has filed this application under Section 378(4) Cr.P.C. seeking permission for leave to appeal against respondents M/s Prajapati Timbers and Sanjay Kumar, challenging the impugned judgment dated 15.07.2013 passed by learned Judicial Magistrate Ist Class, Yamuna Nagar at Jagadhri, whereby the accused-respondents were acquitted.
It is mainly stated in the application that accompanying VINEET GULATI 2016.02.08 17:00 I attest to the accuracy and authenticity of this document Chandigarh CRM No.A-861-MA of 2013 -2- appeal is likely to succeed on the grounds taken therein. It is further stated that learned trial Court while acquitting the accused has not appreciated the facts on record and evidence adduced by the applicant in a true and correct perspective and passed the order on the basis of conjectures, surmises and presumption, which is liable to be set aside.
As per the record, the complainant M/s Sham Timber Traders filed a complaint against accused M/s Prajapati Timbers and Sanjay Kumar under Section 138 of the Negotiable Instruments Act, 1881. As per complainant's version, the complainant firm which deals in trading of timber, supplied timber to accused No.1 firm of which accused No.2 is the proprietor vide 19 different bills from 01.07.2009 to 24.07.2009 in the total sum of `6,66,740/- and in discharge of its existing liability towards the complainant, the accused allegedly issued a cheque bearing No.291250 dated 22.10.2009 in the sum of `6,66,740/-, which on presentation for encashment was dishonoured with the remarks 'funds insufficient'. Legal notice was served upon the accused. When the amount was not paid, then the complaint was filed.
Learned JMIC, Yamuna Nagar at Jagadhri, after appreciating the evidence, acquitted the accused-respondents vide impugned judgment dated 15.07.2013.
After hearing learned counsel for the applicant and after going through the record, I find that the accused admitted his signatures on the cheque but further stated that date and amount on VINEET GULATI 2016.02.08 17:00 I attest to the accuracy and authenticity of this document Chandigarh CRM No.A-861-MA of 2013 -3- the cheque has not been filled up by him. He also stated that he has no dealings with the complainant. He had given blank cheques to one Pardeep Kumar from whom he had taken some money and 9 of his cheques are lying with said Pardeep Kumar and the complainant has misused one of his blank cheque after conniving with Pardeep Kumar. Accused also examined DW-1 Sher Singh, Sales Tax Inspector, who mainly proved the sales tax report filed by the accused for the period 01.07.2009 to 30.09.2009 as Ex.DW1/A, according to which, the return was 'nil return', which means that during the said period, no sale or purchase was made by the accused-firm. He also produced assessment order made by Excise Officer-cum-Assessing Authority on 18.11.2011, whereby the return filed by the accused firm was accepted as correct. Accused also examined DW-2 Satish Kumar, Accountant, who produced the balance sheet of the accused firm and profit and loss account, statement of accused firm for the year ending on 31.03.2010. He further stated that during the financial year 2009- 10, no purchase was made by the accused firm from the complainant firm throughout the financial year and no business was carried out. DW-3 Sumit Kumar, record keeper, District Courts, Jagadhri, produced the copy of the plaint etc. Accused also examined himself as DW-4.
The perusal of the impugned judgment shows that the findings have been given as per evidence and law, while appreciating the evidence in right perspective. In no way, the findings can be held as perverse i.e. against the law and evidence. There is nothing on the VINEET GULATI 2016.02.08 17:00 I attest to the accuracy and authenticity of this document Chandigarh CRM No.A-861-MA of 2013 -4- record that any material evidence has been misread or any material evidence has not been considered by the Court below. The accused has denied the transaction and has brought the official record etc. to show that no said purchase has been made by the accused-firm. Accused has produced its record. On the other hand, the complainant-firm has not produced its account books to prove the transaction. The complainant has proved the bills Ex.C1 to C19 but these do not bear the signatures of the accused. No security document was taken. No record of any type i.e. placing of order for supply of timber etc. nor any other record showing supply of timber nor any entry in the account books of the complainant nor any mention in the income tax record etc. were proved. Nothing has been produced on record, from which it can be held that there is pre- existing liability for which the cheque in question has bee issued. The accused has raised probable defence. Even the reply to legal notice has been given by the accused.
The Court below after discussing the law held that the presumption under Section 139 of the Negotiable Instruments Act has been duly rebutted. When the accused has taken a specific stand that there was no dealing with the complainant, then the complainant is supposed to produce some evidence on record to show the transaction. Furthermore, a civil suit has already been filed by the accused against the complainant praying for restraining the complainant from misusing the cheques which were lying in blank with one Pardeep.
VINEET GULATI2016.02.08 17:00 I attest to the accuracy and authenticity of this document Chandigarh CRM No.A-861-MA of 2013 -5-
In view of the above discussion, I find that the findings given by learned JMIC, Yamuna Nagar at Jagadhri, in no way, can be held as perverse. Rather, these have been given as per the law while appreciating the evidence in right perspective. The impugned judgment dated 15.07.2013 passed by learned JMIC, Yamuna Nagar at Jagadhri, is correct, as per law and evidence and does not require any interference from this Court.
Keeping in view above facts and circumstances, I find that no ground is made out to grant permission for leave to appeal and therefore, the present application stands dismissed.
February 01, 2016 (INDERJIT SINGH)
Vgulati JUDGE
VINEET GULATI
2016.02.08 17:00
I attest to the accuracy and
authenticity of this document
Chandigarh