Criminal Appeal No. 426 of 2003. Case: Sai Accumulator Industries Sangamner Vs Sethi Brothers Aurangabad. High Court of Bombay (India)
| Case Number | Criminal Appeal No. 426 of 2003 |
| Counsel | For Appellant: S.T. Shelke, Advocate and For Respondents: S.N. Pagare, Advocate |
| Judges | A.I.S. Cheema, J. |
| Issue | Indian Partnership Act, 1932 - Sections 69, 69(2); Negotiable Instruments Act, 1881 - Sections 138, 142; Sick Industrial Companies (Special Provisions) Act, 1985 - Sections 16, 17, 22, 22(1), 22(3), 25 |
| Judgement Date | April 22, 2016 |
| Court | High Court of Bombay (India) |
Judgment:
A.I.S. Cheema, J.
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This is an Appeal against acquittal of Respondent - original accused under Section 138 of the Negotiable Instruments Act, 1881 ("Act" in brief).
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Facts in brief may be stated as follows:
"(A). The Appellant - original complainant (hereafter referred as "complainant") filed private complaint in the trial Court claiming that the complainant is a registered partnership firm and had business dealings with Respondent -accused. Respondent had purchased battery plates from the complainant and against such transaction, on 18th May 1994 issued two cheques (Exhibit 46, 47), each of Rupees Twelve Thousand. The cheques were presented to Nagar Urban Central Co-operative Bank of the complainant on 16th November 1994. The Bank sent the cheques for collection to Indira Co-operative Bank of the accused. The cheques returned back to the complainant unpaid with memorandum (Exhibit 56) dated 22nd November 1994 reporting insufficient funds. Complainant issued notice (Exhibit 48) on 25th November 1994 through Advocate which was refused (according to the complainant around 30th November 1994). The complainant filed complaint on 5th January 1995.
(B). On behalf of the complainant, PW-1 Kacheshwar Chavan was examined. He claimed to be one of the partners and claimed that he had the power of attorney to file complaint and to give evidence. Complainant examined PW-2 Pramod Joshi from Nagar Urban Co-operative Bank to prove documents at Exhibit 54, 55 - which were registers regarding sending the cheques for collection and their return. The witness proved memo Exhibit 56 relating to dishonour of cheques. Complainant examined PW-3 Dole Asaraji from Indira Cooperative Bank, who proved that the cheques were returned unpaid for want of necessary funds.
(C). The Respondent-accused entered the witness box and deposed that she did purchase the battery plates and had issued the concerned two cheques. She stated that when she received the battery plates, they were defective and her customers started making complaints and she deposed that one of the customer made written complaint to her and even claimed compensation from her. She claims that she sent the defective battery plates to the complainant and raised dispute regarding the quality. Her evidence is that the complainant did not respondent for 2-3 months and so she issued letter to her Bank which is Exhibit 85, regarding stopping of payment.
(D). The evidence from the record of the trial Court shows that PW-1 claimed the complainant to be registered partnership firm but this was disputed by the accused. In the cross-examination of PW-1 Kacheshwar Chavan also it was suggested to him that the complainant was not a registered partnership firm and that PW-1 was not partner of that firm.
(E). The trial Court discussed the evidence and has recorded findings that the complainant had proved that the accused had issued the two cheques and the same were for discharge of debt or liability. Trial Court held that it was proved that the cheques were dishonoured due to insufficient funds in the account of the accused. It also concluded that the notice dated 25th November 1994 (Exhibit 48) was sent to the Respondent-accused on correct address. However, the trial Court found that the complainant had not proved as to on what date the notice was refused, as...
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