9911796707
TMI Blog2021 (10) TMI 761X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the cheque. Failure of the same shows that the cheque was only issued as a security. The witnesses of the complainant nowhere able to prove that the cheque was for the supplies made and it was for consideration - this Court holds that after applying the law that the findings as recorded by the learned court below call for no interference even after re-appreciating the evidence. It has been held in K PRAKASHAN VERSUS PK SURENDERAN [ 2007 (10) TMI 551 - SUPREME COURT ], that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. Thus, the appellant/complainant-Company has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court - appeal dismissed. - Criminal Appeal No. 278 of 2008 - - - Dated:- 1-10-2021 - Chander Bhusan Barowalia, J. For the Appellant : Romesh Verma, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndrampur Bass Branch of his account No. 3150 with the assurance that the same would be honoured on its presentation under its bank in all circumstances. Accordingly, complainant deposited the said cheque in the State Bank of India, The Mall Solan for encashment. The said banker of the Complainant-Company forwarded the said cheque to the drawee bank for presentation/realization, but to the utter surprise of the Complainant-Company, the said cheque was returned as unpaid by the drawee bank vide its cheque returning memo dated 28.08.2002, indicating the reason insufficient balance and this information was given to the complainant company by the State Bank of India, The Mall Solan vide letter dated 07.09.2002. The said Cheque was dishonoured by the drawee bank due to insufficiency of funds to the credit of accused. After the receipt of the said cheque as unpaid, complainant company issued a registered AD notice dated 14.09.2002 by sending the same on 16.09.2002 at two correct addresses of the accused requiring him to make the payment of the said dishonoured cheque to the complainant company within 15 days from the receipt of the notice. Notice was also sent separately under postal ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed on 26.10.2002 within the prescribed period as provided under the Negotiable Instruments Act. He has further argued that taking into consideration the law laid down by Hon'ble Supreme Court, in 2013 (1) SCC 177, titled as MSR Leathers Vs. S. Palaniappan and another, the complaint is required to be allowed. 8. On the other hand, Mr. Jitender Pal, learned counsel for the respondent-accused argued that the complaint is not maintainable, as the complaint is not filed by the authorized person and is liable to be dismissed on this sole ground. He has further argued that Madan Sharma was never the Managing Director of the Company, as no document has been produced or proved on record and the only document is Memorandum of Association i.e. Ext. CW1/B, and the same is nowhere contains the name of Mr. Madan Sharma as Managing Director. He further argued that even the list of Directors, which is allegedly filed is not a copy of the proceedings duly attested and it is simply a typed copy and is totally unreliable in evidence and no reliance can be placed on the same. He further argued that Madan Sharma, Managing Director, allegedly authorizing Mr. Sita Ram Verma to maintain the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain Vs. Renu Gandotra @ Poonam; 2016 (3) Civil Court Cases 654 (Bombay), titled as Sachin Food Processor Vs. Sanjay T. Pathak (Kulkarni); 2018 (2) Civil Court Cases 530 (Kerala), titled as Susamma Raju Vs. K.M. Wilson; 2018 (4) Civil Court Cases 619 (Bombay), titled as Ghanshyamdas Lalchand Chandak Vs. Sheikh Hamid Sheikh Gulab Anr.; 2019 (3) Apex Court Judgments 732 (SC), titled as B. Krishna Reddy Vs. Syed Hafeez (Died) per LR. Smt. Naseema Begum Anr.; 2020 (3) RCR (Criminal) Kerala High Court, titled as Abdulkhader Vs. C. Pankajakshan Nambiar and Ors.; 2021 (3) Civil Court Cases 724 (Gujarat), titled as M/s. Bajaj Finance Limited Vs. Pooja Narayana Khetan and 2021 (3) Civil Court Cases 438 (Kerala)(DB), titled as K. Basheer Vs. C.K. Usman Koya. 10. Mr. Romesh Verma, learned counsel for the appellant in rebuttal has argued that presumption is attached as per Section 139 of the Act and the judgments cited by learned counsel for the respondent-accused are not applicable in the facts and circumstances of the case or of any help to the respondent-accused. He further argued that the respondent-accused has not entered into the witness box to substantiate his case and rather he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29.05.2002 drawn at Gurgaon and the same was returned with the remarks 'insufficient funds', vide letter dated 7.9.2002. It has also been stated by this witness that the notice was sent to the accused on 16.9.2002 for making payment within 15 days. The notice was duly received by the accused on 23.9.2002, but no payment was made till 8.10.2002 and thereafter the complaint was filed. 15. Ravinder Kumar Yadav, Clerk, Gurgaon, Gramin Bank, Nandrampur Bass Branch District Rewari, Haryana stated that the account of the accused was with the Gurgaon Gramin Bank and the said cheque was presented on 13.6.2002. There was no sufficient funds to the credit of the accused, therefore, it was again presented on 28.7.2002, which was sent to the Bank from the State Bank of India, Solan Branch but the same was dishonored on account of insufficiency of funds. 16. G.S. Kanwar, Sr. Assistant State Bank of India, Solan deposed that the complainant Company presented the cheque for payment on 13.8.2002 but the same was returned with the remarks insufficient funds. 17. Arun Kumar, Sr. Manager, State Bank of Patiala, Panchkula has also deposed that on 31.5.2002, cheque Ex. CW1/D was receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 23. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415, the Hon'ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal: 42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1873 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', ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
