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TMI Blog2019 (12) TMI 102X X X X Extracts X X X X X X X X Extracts X X X X ..... re one Gita Devi G. Saboo was carrying on business in the name and style M/s. Jagdish Associates, the complainant. The complainant was carrying on business of dealing, inter alia, in craft papers and supplying craft papers as per the orders received. The complainant received an order in the first week of July 1996 from the accused for supply of 22 reels of various sizes of craft paper worth Rs. 51,300/-. The accused received the goods on or about 6th July 1996 and issued a cheque dated 16th August 1996 for Rs. 51,300/-. According to the complaint, after intimation to the accused, the complainant deposited the cheque in his bank on or about 6th January 1997 and the cheque came to be dishonoured because the accused had issued stop payment in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with Shree Balaji Enterprises for supply of computer stationery and pursuant to that the accused (Shree Balaji Enterprises) supplied the same and the value of that supply was Rs. 20,160/-. As regards the cheque for Rs. 51,300/-, it was a post dated cheque which was handed over to complainant on 26th July 1996. The goods supplied by complainant were of inferior quality and quantity also was not as per the challan and the accused called upon the complainant to replace the goods but complainant's son (Jagdish Saboo) approached the accused some time on 30th July 1996 requesting that the discrepancies of the goods can be adjusted as they were regularly carrying on business and requested the accused to release atleast Rs. 10,000/- because the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who is a bank employee. The accused having admitted issuance of cheque and stop payment instructions etc., there is no need to delve into the evidence of this witness. The defence led evidence of four witnesses. DW-1 was an employee of the accused, DW-2 is an employee of the bank from where the son of complainant is supposed to have withdrawn the cash of Rs. 10,000/-. DW-3 is one Arvind Chagan Joshi to whom the computer papers worth Rs. 20,140/- was delivered by Shree Balaji Enterprises and DW-4 is the accused himself. DW-1 confirms having delivered 32 boxes of computer from Shree Balaji Enterprises to Arvind Chagan Joshi, i.e., DW-3. DW-3 is an independent witness who states that on instructions of complainant he received 32 boxes of pape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gely prosecution has not led evidence of Jagdish Saboo, the son of PW-1 or the sole proprietor of the complainant to disprove the stand taken by the defence. I would add Jagdish Saboo was a material witness. It is settled law that prejudice will result to the accused from the non-production of Jagdish Saboo whose evidence would have had a direct bearing on the facts urged by the accused. As held by the Apex Court in S. Harnam Singh V/s. The State (Delhi Admn.) (1976) 2 SCC 819 non production of Jagdish Saboo as a witness would cause miscarriage of justice. If one sees the line of cross examination of PW- 1 or the letter at Exhibit 51 or the reply to the statutory notice, the course adopted by the defence is that dealings were with Jagdish S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Saboo in cash. The accused also says he had withdrawn Rs. 20,000/- from bank on 24th October 1996 and gave Rs. 21,140/-. He has not been called upon to prove that he withdrew Rs. 20,000/- in the cross examination. One more thing which is really crucial is Exhibit 63. This is a letter dated 6th November 1996 addressed to Jagdish G. Saboo, Jagdish Enterprises, Bhayandar, in which the accused has recorded that the entire amount, for which he had issued the cheque for Rs. 51,300/-, has been paid in full by giving on 30th July 1996 Rs. 10,000/- in cash vide bearer cheque no.014022, on 19th October 1996 delivering goods worth Rs. 20,160/- by Shree Balaji Enterprises and on 24th October 1996 by giving Rs. 21,140/- in cash. Accused has also produce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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