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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 ..... partment 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. 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 - HELD THAT:- In order to show that supply of cement bags was made by the complainant to the accused, there must be an acknowledgment on the part of the accused for having received the said bags. No such material is placed before the Court. In order to prove the same, the complainant has also not placed any document to show that 9040 cement bags were supplied to the accused. The claim is to the extent of ₹ 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 - there are no error committed by the Court below in dismissing the complaint. The burden is on the complainant to prove that cement bags ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 material on record, dismissed the complaint disbelieving the case of the complainant and hence, the present appeal is filed before this Court. 5. The grounds urged in the appeal are that the learned Magistrate failed to consider both oral and documentary evidence on record. The complainant had produced documentary evidence in the form of 21 tax invoices for having supplied the cement bags and the learned Magistrate has failed to appreciate the same. He has simply brushed aside the said documents, which resulted in miscarriage of justice. 6. It is stated that the learned Magistrate while accepting Ex.D4 indicating VAT registration of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. The complainant also has not placed any material for having served notice. Exs.P9 to P29 are all invoices and no separate bills are issued for having supplied the material in terms of Exs.P9 to P29. There is no acknowledgement for having supplied the material to the accused in terms of Exs.P9 to P29. These documents are fabricated documents. To substantiate that the material was supplied in terms of Exs.P9 to P29, the complainant has not placed any material before the Court. Ledger entries as per Ex.P39(a) and Ex.P46 varies from Exs.P9 to P29 and same are not in respect of any supply made to the accused. Exs.P9 and P1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the complainant that the complainant has supplied cement bags to the tune of ₹ 24,20,250/- and in response to the supply, the accused has issued a cheque dated 23.10.2013 and when the same was presented for encashment, it was dishonoured with an endorsement Funds Insufficient on 24.10.2013. The legal notice was sent to the accused and in spite of service of notice, she did not pay the amount. The complainant in order to substantiate the contention of issuance of legal notice, relied upon the document Ex.P4 and also produced Exs.P5 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 10.04.2013 to 04.06.2013. Then, Ex.P9 according to the complainant is with regard to last supply of cement bags. Exs.P9 and P28 are one and the same (but total amount varies). Having considered the invoices, it is seen that the bill number varies with regard to the transaction and the same is not in the ascending order. The complainant except showing the account has also not placed any material before the Court for having supplied the material to the accused and that she has acknowledged the supply of cement ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ₹ 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 1 to two months and the complainant has not offered explanation with regard to the variance in the bills and in the invoices. Hence, I do not find any error committed by the Court below in appreciating both the oral and documentary evidence. 14. So far as the other contention of the complainant that the learned Magistrate ought to have drawn a presumption under Section 139 of the Act is concerned, no doubt, the Court can draw presumption, but in order to draw presumption, the complainant has to discharge his burden to prove the transacti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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