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TMI Blog2020 (1) TMI 551X X X X Extracts X X X X X X X X Extracts X X X X ..... starting from 10.04.2013 to 04.06.2013 amounting to Rs. 24,20,250/- as per the tax invoices which are 21 in number. Towards the payment of her liability and towards the supply of cement by the complainant, the accused has issued a cheque bearing No.000625 dated 23.10.2013 for the above said amount assuring that the same would be honoured on its presentation. The said cheque was presented and the same was dishonoured on 24.10.2013. The complainant left with no other alternative, caused the legal notice dated 13.11.2013. Despite service of the same, the accused has neither replied nor has she paid the cheque amount. Hence, the complaint is filed. 4. In pursuance of the complaint, notice was issued against the accused and he did not plead guilty and claimed trial. Hence, the complainant examined the special power of attorney holder of the complainant as PW.1 and he produced the documents as per Exs.P1 to P48. The statement of the accused was recorded under Section 313 of the Criminal Procedure Code, 1973. Thereafter, the accused also led his defence evidence and he got marked the documents as per Exs.D1 to D5. The Court below after recording the evidence and also considering the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presumption under Section 139 of the Act. Viewed from any angle, the dismissal of the complaint is not sustainable in the eye of law. 7. The learned counsel appearing for the complainant in his argument, he vehemently contended that the cheque, which was presented was returned with an endorsement "insufficient funds". The main contention of the accused is that the notice issued was not served on him and he has not clarified as to whether he has left the said address. The document - Ex.D5 is self-serving document and legal notice was sent to the same address as maintained by the accused. The transaction is only in between the period from 04.06.2013 to 14.06.2013. Exs.P9 to P29 shows that the cement bags were supplied to the accused and he did not pay the amount. The learned Magistrate proceeded on an erroneous approach accepting the evidence of the accused and not considering the evidence of the complainant and hence, the impugned judgment requires interference by this Court. 8. The learned counsel appearing for the accused in his argument, he vehemently contended that the accused was not carrying on the business in the address shown in the legal notice which is marked as Ex.P4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the judgment of the High Court of Gujarat in the case of Patel Amrutbhai Narayandas vs. State of Gujarat reported in LAWS (GJH) 2012 1168 and brought to my notice paragraph No.8 of the said judgment and contended that no notice was served on the accused. Hence, the Gujarat High Court held that since the notice was not served on the accused, the Court cannot invoke Section 138 of the N.I. Act since the complainant has not complied with the requirement of giving notice in terms of clause (b) of the proviso to Section 138 of the Act. Hence, he prayed this Court to dismiss the appeal. 10. Having heard the arguments of the learned counsel for the complainant and also the learned counsel for the accused and also the grounds urged in the appeal as well as the rival contentions urged before this Court, the points that arise for consideration of this Court are as under: 1. Whether the Court below has committed an error in dismissing the complaint in coming to the conclusion that the transaction was not proved by the complainant ? 2. Whether the impugned judgment requires interference by this Court ? 3. What order? 11. On perusal of the complaint, it discloses that it is the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complainant did not get the endorsement from the postal department to confirm that the legal notice was served on the accused and hence, first of all for having served the notice on the accused, there is no material before the Court. 12. The second contention of the complainant is that in respect of the material supplied in terms of Exs.P9 to P29, the accused did not put any amount. On perusal of Exs.P9 to P29, the invoices are issued for having supplied the material. Learned counsel appearing for the accused brought to my notice Ex.P9, invoice, dated 04.06.2013 bearing No.876. Learned counsel has also brought to my notice Ex.P10 the invoice dated 01.06.2013 that is prior to the invoice Ex.P9 and Sl. No. is mentioned as 879. 13. The learned counsel for accused also brought to my notice Ex.P11 dated 31.05.2013, but its bill number is 866 and the main contention of the learned counsel for the accused is that these are the invoices, which are created to claim the amount from the accused and also no documentary proof is placed for having supplied the material in terms of Exs.P9 to P11. No doubt, there is a discrepancy in the bill number and the date of transaction is also between 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. The claim is to the extent of Rs. 24,20,250/- and only invoices of Exs.P9 to P29 are relied upon with regard to the supply of cement bags and when such being the case, the Court below after considering the oral and documentary evidence, has rightly come to the conclusion that the complainant has not proved the very supply of cement bags to the accused. Hence, I do not find any error committed by the Court below in dismissing the complaint. The burden is on the complainant to prove that cement bags were supplied to the accused and the same has not been discharged by him by placing the material before the Court. The records also reveals that the transaction took place between the complainant and the accused to the tune of more than Rs. 5,00,00,000/- and when such huge transaction is said to have taken place, it is duty of the complainant to substantiate that cement bags were supplied to the accused between 10.04.2013 to 04.06.2013. The documents relied upon by the complainant i.e., Exs.P9 to Ex.P29 also varies in number and not in the same series. Also, it is to be noted that the transaction had taken place within a span of 1½ to two months and the complainant has not of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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