9911796707
TMI Blog2018 (9) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... no authority to file the same, but the signatures on the disputed cheque and other documents appeared to be forged and in any case, there was lack of credible evidence to show that there had been transactions between the parties for which the respondents had issued the cheque in discharge of legal debt or liability. It is trite that in criminal jurisprudence when two views are possible, the view that is in favour of the accused is to be adopted. The trial Court in the present case has taken a possible view of the matter and there is no reason why the same is required to be reversed. The appellant has failed to demonstrate any justifiable reason for interfering with the impugned order passed by the trial Court. The present appeal is found to be without any merit and it is dismissed - Criminal Application (APPA) No.406/2016 in Criminal Appeal No.479/2018 - - - Dated:- 31-7-2018 - MANISH PITALE, J. Mr. M.R. Sharma, Advocate for Applicant. Mr. M.D. Samel, Advocate for Respondent Nos. 1 2. ORDER 1. This court had issued notice on this application for grant of leave on 28.11.2017. The respondents entered appearance. 2. Heard counsel for the parties. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the remark account is closed . As a consequence, the appellant sent a notice to the respondents to which there was no response and eventually the appellant was constrained to file complaint before the trial Court. 4. The defence of the respondents was that they did not receive the notice issued by the appellant. They denied the signature on the disputed cheque, claiming that the appellant in connivance with their Manager had obtained the disputed cheque and filled the contents therein and that the cheque had been misused. The respondents examined a handwriting expert to prove that the signatures on the disputed cheque and the alleged purchase order and delivery challans were forged and that no such transaction ever took place between the parties. A specific objection was also taken by the respondents that the appellant was not Proprietor of M/s Century Steel Traders and that, therefore, he had no authority to file the complaint. 5. The appellant relied upon documentary evidence in the form of quotation dated 27.02.2011 (Exh.37), purchase order dated 1.3.2011 (Exh.38), delivery challans dated 25.03.2011 and 6.4.2011 (Exhs. 39 and 40) and disputed cheque dated 5.3.2012 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (trial Court) to call for original records so as to test the veracity of the certificate produced by the appellant herein. 9. As a consequence, the certificate issued by the Inspector under the Bombay Shops and Establishment Act, 1948 dated 27.01.2014 was marked as Exh.126. The respondents filed an application (Exh.137) before the trial Court praying for de-exhibiting the said document and the additional affidavit in evidence filed on behalf of the appellant, on the ground that the complainant was not the author of the said document and that original record from the office of the Inspector under the Bombay Shops and Establishment Act, 1948, was required to be called to test the veracity of the said certificate. In view of the specific liberty granted by the Hon ble Supreme Court in the order dated 26.02.2016, the said application was in terms of the said liberty. Yet, the complainant filed its reply and opposed the said application on the ground that there was no provision for de-exhibiting the document. By order dated 17.03.2016, the aforesaid application filed by the respondent (Exh. 137) was dismissed by the trial Court. 10. Thereafter, the complainant was examined in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute the same. It was submitted that the document was issued by a public authority and under the provisions of the Evidence Act, 1872, no further proof was required to be placed on record by the appellant to prove that said Rajiv Shivji Sharma was indeed the Proprietor. It was further submitted that reliance placed on the report of the handwriting expert and his evidence, was misplaced and that the findings rendered by the trial Court in this regard were perverse. It was further submitted that the trial Court erred in holding that the appellant had failed to prove the transaction between the parties, when there was sufficient material on record to show that presumptions under Sections 118 and 139 of the Negotiable Instruments Act, 1881 operated in favour of the appellant. It was submitted that in view of the detailed documentary and oral evidence placed on record, the appellant had indeed proved that the disputed cheque had been issued in discharge of legal debt and yet the trial Court had erroneously acquitted the respondents. 13. Per contra, Mr. M.D.Samel, learned counsel appearing on behalf of the respondents, submitted that the trial Court was justified in acquitting the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the complaint. In his evidence, he reiterated the grievance raised in the complaint that the disputed cheque was issued by the respondents for payment towards supply of M.S. scrap, for which the purchase order and delivery challans were relied upon. In the cross-examination, prior to the document at Exh.126 coming on record, the said witness had admitted that the word Proprietor was not found beneath his signature in the documents at Exh.37 (quotation dated 27.02.2011) and Exh.38 (purchase order dated 1.3.2011). It was further admitted that he had signed as authorized signatory in the aforesaid document at Exh.38. He further admitted that he was not the Proprietor of the complainant (appellant) and further that he had not filed any document in that regard. He stated that he was looking after the work of the complainant (appellant) since 2007-2008. Thus, the aforesaid admissions made in the cross-examination by the said witness clearly demonstrated that he was not the Proprietor of the complainant (appellant). 16. But, after his application for placing on record aforesaid certificate (Exh.126) was allowed by this Court, the said certificate came on record and according to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icate at Exh.126. Therefore, the contention raised on behalf of the appellant that once the said certificate was exhibited at Exh.126 before the trial Court, the respondents were not entitled to dispute the same or raise any objection to the same, is absolutely baseless and it cannot be accepted. Reliance placed on behalf of the appellant on the Division Bench judgment of this Court in the case of Hemendra Rasiklal Ghia .vs. Subodh Mody- 2008 (6) Mh.L.J. 886 is wholly misplaced. The said certificate Exh.126 on its own could, therefore, not become the basis for the said Rajiv Shivji Sharma to claim that he was the Proprietor of the appellant. 18. In this context, the cross-examination of the said witness of the appellant after the certificate at Exh.126 was brought on record, becomes even more significant. During this cross-examination, the said witness stated that he received the certificate Exh.126 on 23.01.2014. He stated that he personally went to the concerned office of the department on 23.01.2014 to collect the said certificate Exh.126. But, he admitted that he did not know the detailed address of the office from where he collected the said document. He also stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he signatures on the said documents were not those of the respondents. It was contended on behalf of the appellant that the cross-examination of the handwriting expert had completely demolished the said evidence of the expert. 20. A perusal of the report of the handwriting expert shows that according to him there was difference in signatures. The handwriting expert appeared as a witness and deposed about the manner in which he had come to the said conclusion. In cross-examination, the said witness admitted that he had prepared the report by examining disputed signatures from photocopies and comparative signatures in original. He also admitted that there was possibility of alterations in photocopies of documents and that if the original documents were produced then the report would be 100 %. It is on these admissions made by the said witness that the appellant has emphasized, in order to claim that the report deserved to be disbelieved. But, a perusal of the record shows that the copies of the disputed documents were given to the expert after they were obtained from the original record of the Court. Certified copies were obtained from the original record of the Court and the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt beyond 15 days, it was not imposed on the respondents. The appellant has also failed to explain that if the disputed cheque was issued for supply of total 107 metric tonnes of M.S. scrap at the rate of ₹ 25,500/- per metric tonne, why was the amount more than the value of the said amount of material. 22. The aforesaid admissions made in the cross-examination by the witness for the appellant demonstrate that there was insufficient evidence to show that the disputed cheque was indeed issued for supply for material as claimed by the appellant. A serious doubt was created abut such transactions having taken place between the parties. Therefore, there was hardly any evidence on record placed by the appellant to prove foundational facts pertaining to the claims made it. In such a situation, the appellant was not justified in claiming that presumptions under Sections 118 and 139 of the Negotiable Instruments Act, 1881, operated in its favour. 23. The trial Court took into consideration the entire evidence and material on record and found that not only was the appellant unable to prove that the said Rajiv Shivji Sharma was its Proprietor, but it had also failed to prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
