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TMI Blog2019 (4) TMI 2161X X X X Extracts X X X X X X X X Extracts X X X X ..... not appraised the entire evidence on record in a wholesome and harmonious manner and the analysis of the learned trial Court hence suffers from a perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. The impugned judgment is quashed and set aside - Appeal allowed. - Hon'ble Judges Sureshwar Thakur, J. For the Appellant : B.C. Negi, Senior Advocate and Nitin Thakur, Advocate For the Respondents : Karan Singh Kanwar, Advocate DECISION Sureshwar Thakur, J. 1. The instant appeal stands directed, against, the verdict rendered by the learned Judicial Magistrate, 1st Class, upon, criminal complaint bearing No. 59/3 of 2010. 2. Briefly, the facts of the case are that the accused approached the complainant in its factory at Moginand, and expressed her desire to purchase, non-woven fabric from the complainant. On the basis of order placed by the accused, non-woven fabric was sold to the accused vide invoice No. 135 dated 16.10.2010 amounting to Rs. 5,10,000/-. The material was sent to the accused in truck No. HP-71-0693 and after receiving by her, in lieu of which she issued a cheque bearing No. 323935 dated 1.11.2010, in favour of the complainant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith considerable force and vigour, contended that the findings of acquittal, recorded by the learned Court below rather standing based on a mature and balanced appreciation, by it, of evidence on record, and, theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. The respondent/accused, issued a cheque, borne in Ext. CW 1/B, vis- -vis, the complainant. The afore cheque bears No. 323935, and, carries, therein a sum of Rs. 5,10,000/-. The factum, of, Ext. CW 1/B, upon its presentation, rather being dishonoured, for want of sufficient funds, in the account(s) of respondent/complainant, stands proven, by CW-1. CW-1 has, during the course of his examination- in chief, has hence proven Ext. CW 1/C, whereunder Ext. CW 1/B, stood returned, wherefrom it is palpably imminent qua, upon presentation of Ext. CW 1/B, before the Bank concerned, whereon it was drawn, it, for want of sufficient funds, hence thereat, in the account(s), of the respondent/complainant, rather standing refused to be honoured. The learned trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r making hence bespeaking(s), qua the goods being received, by the accused at Karnal, (ii) and, further with the complainant, also failing to adduce documentary proof, vis- -vis, the date whereat the respondent/accused, had, received, the supply of goods, (iii) besides the driver of the truck, engaged for, transporting the goods to Karnal, namely Karam Singh, rather remaining un-examined, vis- -vis, the goods being carried in the afore truck, upto Karnal, hence, concluded that the statutory presumption, coming under a cloud, and, rather it working obviously against the complainant. 11. For the reasons to be ascribed, hereinafter, all the afore reasons, as ascribed by the learned trial Magistrate, to, pronounce an order of acquittal, upon the accused, are rather hinged, (i) upon, gross mis-appreciation(s), of, the mandate of Section 139 of the Negotiable Instrument Act, (ii) and, also upon a gross-mis-application, thereon, vis- -vis, the afore material, and emphatically, hence she has committed a gross fallibility, (iii) qua, hence, on anvil(s) thereof, the afore statutory presumption, rather being rebutted, (iv) undisputedly, the signatures, occurring on Ext. CW 1/B, and, also all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scharge in whole, or in part, of, any legally enforceable debt or any other liability, (xii) whereupon rather the efficacy and import, of the afore statutory presumption, hence would be rather rendered redundant, besides the afore imports, and, signification(s) as afore made vis- -vis, the prior thereto statutory coinage, unless contrary is proved , would be diluted (xiii) whereupon the accused, though, is statutorily injuncted to lead cogent proof, for disproving, the apt statutory presumption, would, render the afore injunction, to, suffer untenable detraction, and, also dilution, and, hence would also, preclude the befallments, upon him, of the afore statutory entailments, rather statutorily exclusively encumbered upon him. 12. Since, as aforesaid, the signatures of the accused, and, also all the scribing(s), thereon, are, in the hands of, the accused, thereupon, the veracity, of, the communication(s) made by the complainant, in his testification, comprised, in her examination-in-chief, wherein he made echoing(s), qua the accused, visiting, the factory premises, of, the complainant firm, and, hers after inspecting the products, hers ordering them to be supplied, and thereafter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nying the factum, qua hers visiting the factory premises, with the complainant, rather her employee visiting the afore premises. However, placing any reliance thereon, is both gross, and, inappropriate, as the appropriate motion, for rebutting the afore echoing(s), as emanated in the examination-in-chief, of the complainant, rather stood comprised in meteing, of, suggestion(s), to CW-1, during, the course of his being held to cross-examination, (vii) however, with no apt therewith suggestion(s), being meted to him, during, the course of his cross-examination, by, the learned defence counsel. (viii) Consequently, the afore echoing(s), as occurs in the statement(s), made by the accused, in proceedings, drawn under Section 313 Cr. P.C., were discardable, nor credence was meteable thereto, rather, upon, prior thereto, afore admission(s), hence emanating and, visibly at an appropriate stage, (ix) thereupon, the respondent rather is to be concluded to acquiesce, qua the afore testified factum, qua hers, visiting the factory premises, and hers, making an order for supply of goods. In aftermath, her prevarications, are, to be dis-countenanced. Since, for all the aforesaid reasons, the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the proof, qua it being not efficaciously drawn, rather remaining un-adduced, by the accused, (xix) thereupon when within the ambit of the signification acquired by the coinage, unless contrary is proved , rebuttal evidence, vis- -vis, the Negotiable Instrument Act, being not issued, rather towards satisfaction in whole or in part of debt, or any other contractual liability, hence remains not adduced, (xx) thereupon dehors, the afore purported incorrected embossed reflections borne therein renders, the, apt statutory presumption to remain uneroded, vis- -vis, its vigor. However, the learned counsel appearing for the respondent/accused, has placed reliance, upon, a judgment rendered by this Court in, case titled as, State Bank of India versus Anil Kumar Sharma, reported in 2008 SCC Online HP 228 (2009) 2 BC 374, wherein, in paragraph-15, paragraph whereof is extracted hereinafter: It has been held in M.S. Narayana Menon Alias Mani Vs. State of Kerala III (2006) CCr 76 (SC): V (2006) SLT 252:III (2006) BC 433 (SC): (2006) 6 SCC 39, that the presumption both under Sections 118 (a) and 139 of the Act are rebuttable in nature. For rebutting such presumption, what is needed is to ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 6.6.1996, as the quality of the sample of the aforesaid item was not found satisfactory, as such the respondent had made the request to return the cheque vide letter Ex. D2 informed the respondent that cheque aforesaid had already been presented for clearance with State Bank of India, Kala Amb, and it would be returned as soon as they would get it back. Further letter Ext. P-12, dated 10.6.1996, referred to the above cheque No. 928960, dated 6.6.1996 for Rs. 7,93,538.90 (Ex. P1) having been issued by the respondent, for the Bill Nos. 18-A and 20-A whereas the appellant Bank latter produced on record the Bill Nos. 18 and 20 as against their original case set up for 18-A and 20-A and no copies of the Bil Nos. 18-A and 20-A were even placed on record. 13. PW- S.S. Randhawa, the Branch Manager of the appellant Bank in his earlier statement testified that the cheque was issued for Bill Nos. 18-A and 20-A dated 31.1.1996 and 3.2.1996 for discharging its liability by the respondent. Further, vide legal notice Ext. P-2 dated 10.7.1996 sent through its Advocate by the appellant Bank requested the respondent to pay the amount of Rs. 7,93,538.90 within 15 days from the receipt of the not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eruptions, of all the efficacy(s), and, imports thereof and also, would erode, the afore signification made by this Court, vis- -vis, all the coinages, occurring, in Section 139 of the Act, (xxvi) besides would untenably render paragraph-15 of the judgment(supra), to hold absolute generalized overriding effect, dehors, the prior thereto discussion, held, in paragraphs No. 12, 13, and 14 of the judgment (supra). 13. A reading of paragraphs No. 12, 13 and 14, paragraphs whereof, hence precedes paragraph-15, unfold, that the evidence adduced, by the accused, hence making palpable echoing(s), qua the purported existing or legally enforceable liabilities, rather being indemnified or liquidated, thereupon this Court, proceeding to render the subsequent thereto paragraph-15, of, the judgment(supra), and it hence concluding qua rather adequate rebuttal evidence, in dis-proof, of, the statutory presumption, hence being adduced. However, extantly, the complainant apart from meteing, the afore suggestion, to the complainant while holding him, to cross-examination, and, with this Court, in the afore discussion, dwindling the force of the afore suggestion, meted to the complainant, during, his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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