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TMI Blog2015 (6) TMI 1249X X X X Extracts X X X X X X X X Extracts X X X X ..... ces produced at exhibit 7/c, however, has not based her finding on the reconciliation statement. In my considered view, the defence set up by the first respondent at the very inception, when he issued the reply to the notice on 31/12/2009, appears to be credible and probable. The appellant had failed to establish on the basis of acceptable evidence that on 31/03/2009, an amount of Rs. 2,92,212/- was due and outstanding against the first respondent. The finding recorded by the learned Magistrate is a plausible view, recorded on appreciation of oral and documentary evidence on record and it is not shown that the view taken by the learned Magistrate is either perverse or is an impossible view. Appeal dismissed. - Criminal Appeal No. 62 of 2014 - - - Dated:- 30-6-2015 - C.V. BHADANG, J. For the Appellant : C.A. Coutinho and Shailesh Redkar, Advocates For the Respondent : S. Taliegaonkar, Advocate JUDGMENT C.V. Bhadang, J. 1. By this appeal, the appellant/ complainant is challenging the judgment and order dated 27/03/2014 passed by the Judicial Magistrate, First Class, Margao in Criminal Case No. 26/OA/NI/10/D. By the impugned judgment, the learned M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. 5. It is submitted by the learned Counsel for the appellant that the appellant used to supply the stock of soft drinks to the first respondent in respect of which bills used to be raised from time to time. It is submitted that the first respondent was making payment not on the basis of individual invoices raised, however, there was a running account kept between the parties. It is submitted that the subject cheque was issued by the first respondent after finalising of the accounts in the year 2009. It is submitted that on behalf of the appellant, statement (exhibit 62) was produced on record which would clearly go to show that the amount of Rs. 2,32,272/- was outstanding against the first respondent in respect of the soft drinks supplied. The learned Counsel has taken me through the statement of account, in order to submit that the accounts were properly maintained. It is submitted that the first respondent had set up a defence that during summer, there was an increased demand for the soft drinks. Hence, the first respondent had obtained extra number of empties (bottles and crates), for which the appellant had insisted for a blank cheque being given. The said cheque was ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant at Shiroli, Kolhapur. Anil Patil has not been examined by the appellant. There is no challenge to exhibits 62 and 64. He submitted that thus, the learned Magistrate has rightly acquitted the appellant and in the absence of there being any perversity in the impugned judgment, no interference is called for. The learned Counsel has placed reliance on the decision of this Court in Rajendra Babal Naik Vs. C.M. Mathew and another, reported in 2009 ALL MR (Cri.) 3525, John Fernandes Vs. Noorjahan Khan, reported in 2009 ALL MR (Cri.) 3528, Navneetdas Narayandas Barshikar Vs. Bacchubhai Mulji Tanna Anr., reported in 2012 ALL MR (Cri.) 232 and Joseph Vilangadan Vs. Phenomenal Health Services Ltd. Anr., reported 2011(1) ALL MR 709. He, therefore, urged that the appeal be dismissed. 7. I have considered the rival circumstances and the submissions made. 8. The legal position about the scope and ambit of the powers available to this Court, in an appeal against acquittal is no longer res integra. In a recent decision in the case of Chandrappa Vs. State of Karnataka, (2007)4 SCC 415, the Hon'ble Apex Court has held thus : 42. From the above decisions, in our considered view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolhapur, Maharashtra and one Anil Patil was the incharge of the depot operations. It is further undisputed that the appellant used to supply the soft drinks and bottled drinking water to the first respondent in respect of which invoices were raised. It is further undisputed that the payment was made by the first respondent not on the basis of individual invoices, but a running account was maintained between the parties, against which the first respondent used to make payment. The business relations between the parties continued from April, 2006 to August 2008. According the appellant, although supplies were made from the depot at Shiroli, the account operations were done at Goa. 10. The appellant came with a case that as on 31/03/2009, the total amount due and payable by the first respondent was Rs. 2,92,212/- which comprised of Rs. 2,32,272/- towards the soft drinks and Rs. 59,940/- towards empties (crates and bottles). It was claimed that against this payment, the first respondent had passed the cheque dated 17/11/2009, drawn on his account with ICICI Bank, Kolhapur Branch, which was deposited by the appellant with Yes Bank at Margao. By an intimation dated 23/11/2009, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence on record on preponderance of probability. Thus, the burden on the accused is not as heavy as that on the complainant. 12. In the present case, the first respondent has admitted the signature on the cheque. The defence is that it was given as a security and not against any legally enforceable liability of the nature as stated by the appellant. The learned Magistrate has considered the evidence led by the parties, in order to see whether the presumption under Section 139 of the Act stands rebutted from paragraph 48 onwards of the judgment. It has been found that the first respondent has shown on preponderance of probability that payment of cheque drawn on ICICI Bank was discontinued in the year 2007. It has also been found that the appellant and his witnesses have admitted that at times blank cheques were obtained. It is submitted on behalf of the appellant that the learned Magistrate has misconstrued the evidence in this regard, in as much as what was admitted was a minimum of three blank cheques were obtained as security when the distributors were appointed and it was further stated that in the present case, no such blank cheques were obtained. It is submitted that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of some other account previously maintained, the outstanding amount at the foot of the said statement, cannot be held to be credible. The first respondent had come with a specific case that the accounts were settled on 23/06/2008 when the outstanding was Rs. 1,10,928/- and the reconciliation statement is produced at exhibit 68/c. Although the learned Magistrate had found on comparing of the signature that the statement exhibit 68/c bears the signature of the representative of the appellant, which is comparable to the invoices produced at exhibit 7/c, however, has not based her finding on the reconciliation statement. In my considered view, the defence set up by the first respondent at the very inception, when he issued the reply to the notice on 31/12/2009, appears to be credible and probable. The appellant had failed to establish on the basis of acceptable evidence that on 31/03/2009, an amount of Rs. 2,92,212/- was due and outstanding against the first respondent. At any rate, the finding recorded by the learned Magistrate is a plausible view, recorded on appreciation of oral and documentary evidence on record and it is not shown that the view taken by the learned Magis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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