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M/S S P Holdings vs M/S Angel Creation on 4 September, 2013 cites

Harish Mansukhani vs Ashok Jain on 19 November, 2008

17. After considering the facts and circumstances of the case, and in light of the evidence brought on record, I am of the considered view that accused has been able to successfully rebutt the statutory presumption because the defence of accused during the whole trial has remained consistent and looks probable. Further, there are material contradictions in the testimony of complainant. Counsel for accused has submitted that and none of the challans have been filed in original by the complainant and they are merely copies which have been marked and they have also not been countersigned by the accused or any of his employees. Counsel for accused has further submitted that these are unilateral documents and even the statement of accounts of complainant is also a unilateral document which the complainant can manufacture and forge & fabricate at its own end as they were never countersigned by the accused. Further the complainant failed to produce the originals of the invoices and challans in view of the judgment M/s S P Holdings vs M/s Angel Creation Page 9 of 13 10 passed by Hon'ble Mr Justice Sh Pradeep Nandrajog and Justice J R Midha in Harish Mansukhani vs Ashok Jain cited as 2009 (II) AD (Delhi) 30. Even during the cross examination of accused as witness, the question was put to him that the challans were not original and despite question about the authenticity of the challans, the challans were not produced by the complainant. Moreover, none of the copies filed by the complainant marked as C-1 to C-3 bear the signatures of either the accused or any of his employees. Accused had examined himself in his defence evidence and submitted that the goods were received by Sh Verma, Manager of complainant vide receipts ExDW1/D-1 to ExDW1/D-4 and when the sums of these receipts are added, they total up to the cheque amount in question i.e. Rs.3,36,839/- and the statement of accounts admittedly furnished by the complainant in which these amxounts have been shown to be received by the Manager of the complainant Sh Verma and have been encircled in red ink. The defence stand taken by the accused has remained consistent throughout, at the time of framing of notice U/s 251 CrPC, during cross examination of complainant witnesses, his statement U/s 313 CrPC as well as his examination in chief and cross examination. None of these times, the defence of the accused is evasive. Accused had proved the document of stop payment instructions to his banker and that document has been counter signed by the banker which further lends credibility to the defence theory of the accused. Accused had submitted that this was his only first dealing with the complainant in which he was defrauded by the complainant as complainant never believed the accused right from the very start and after M/s S P Holdings vs M/s Angel Creation Page 10 of 13 11 taking orders, complainant used to send invoices before dispatch of the consignment of goods for which the work order was placed by the accused after which the accused was supposed to pay by way of a security cheque and after those goods were sold by the accused and their payment collected in cash, accused had to make the payment to the complainant in cash as per demand of complainant and those cheques which were sent for earlier invoices were supposed to be returned back to the accused but have been misused in this and other complaint. The stand of the accused is that after sending the consignment of goods, complainant raised/altered the work order without the consent of the accused and inflated the bills to the tune of approx. Rs. 08 lacs which was never legally payable to the complainant. When the cross examination of CW-1 is read in consonance to the defence evidence, it appears that the story of accused is proved and believable. Despite the fact that accused raised a question during cross examination that the cheque amount was paid to the Manager of the complainant i.e Sh Verma, he was never examined by the complainant for reasons best known to the complainant when it would have been in the interest of the complainant to examine Mr Verma also if the deposition given by the accused is false.
Delhi High Court Cites 3 - Cited by 148 - P Nandrajog - Full Document
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