M. Ashok vs Mahesh

A.S. Pachhapure, J.—The appellant has challenged the judgment and order acquitting the respondent for the charge under Section 138 of NI Act.

The facts reveal that the appellant is the proprietor of M/s. Sharada Poultry Form and there was business transaction between the appellant and the respondent for eggs on credit basis. A sum of Rs. 5,54,019.50/- was due. On the basis of the part payments made by the respondent, Rs. 4,54,019.50/- was due towards the repayment of the dues. The respondent is said to have issued four cheques for a sum of Rs. 75,000/- each. Two cheques dated 25.08.2008 and other two cheques dated 24.10.2008. The said cheques were presented for encashment and they returned with an endorsement ''insufficient funds''. The appellant issued notice to the respondent and as there was no compliance with the demand made, a complaint came to be registered for the offence under Section 138 of the Act.

The trial Court recorded the evidence and on appreciation of the same, acquitted the respondent for the said charge. Aggrieved by the said order, the present appeal is filed.

During the pendency of this appeal, an application-I.A. No. 3/2014 has been filed by the appellant under the provisions of Section 391 of Cr.P.C. seeking permission to produce an endorsement said to have been executed by the respondent. Objections statement to the said application has been filed.

Heard the learned counsel for both the parties.

The points that arise for my consideration are:

"1. Whether the appellant has made out any grounds to warrant interference with the judgment and order of the trial Court?

Whether an application filed by the appellant under the provisions of Section 391 of Cr.P.C. deserves to be allowed?"

Learned counsel for the appellant submits that defence that has been taken by the respondent is that the cheques were given as security. Accepting his defence, the trial Court has granted an order of acquittal. He submits that the respondent has issued those cheques towards repayment of the dues and an endorsement was given by the respondent even before filing of the complaint and the said endorsement was not produced by him as it was misplaced. Therefore, he submits that if the appellant is permitted to produce the endorsement, there is ample material on record to grant an order of conviction and therefore, he seeks to set aside the impugned order.

On the other hand, learned counsel for the respondent submits that the cheques were given only by way of security and accepting the said evidence, the trial Court has granted an order of acquittal. Further, it is his submission that the endorsement produced is the concocted document and the signature of the respondent has been forged. It is also his further submission that the appellant has ample opportunity to produce the endorsement before the trial Court, but he has failed to do so. He further submits that the application filed by the appellant to produce an endorsement said to have been executed by the respondent cannot accepted and as the cheques were issued only as security, the question of setting aside the order of acquittal does not arise for consideration.

Perusal of the judgment would reveal that the defence of the respondent has been accepted by the trial Court and the respondent was acquitted on the ground that the cheques issued were towards the security and in respect of business transaction and not towards the repayment of any dues. Anyhow, it is also the pleading of the appellant in the trial Court and he has stated in the evidence that the endorsement was given by the respondent admitting the liberty and issuance of the cheques. But this endorsement was not produced by the appellant in the trial Court. For the first time in this appeal, an application has been filed under the provisions of Section 391 of Cr.P.C. seeking permission to produce the same.

Perusal of the endorsement reveal that two cheques dated 25.08.2008 and other two cheques dated 24.10.2008 have been referred in the endorsement towards a sum of Rs. 3,00,000/-. There appears to be a signature below the said endorsement. The question as to whether the signature or the contents of the endorsement is in the hand writing of the respondent has to be taken into consideration by the trial Court. This Court while hearing interlocutory application cannot determine all these questions.

It is the specific contention of the appellant that the said endorsement was misplaced at the time of filing the complaint and it was not within the knowledge of the appellant. Therefore, he has stated that the said endorsement is not produced in the trial Court. Anyhow, as there is a claim for a sum of Rs. 3,00,000/- and as the appellant has filed this application atleast for the first time in this appeal, the application deserves to be allowed by imposing some costs. Taking into consideration this aspect and as there is a reference in the endorsement for a sum of Rs. 3,00,000/-, it appears, it is necessary to afford permission to produce the endorsement to render justice to both the parties.

Taking into consideration the said aspect, I am of the opinion that it is just and proper to set aside the impugned judgment and order and remit back the matter to the trial Court to afford an opportunity to both the parties to produce the documents and the trial Court to dispose of the case in accordance with law.

Consequently, the appeal is allowed. The impugned order is set aside. The application-I.A. No. 3/2014 is allowed on costs of Rs. 5,000/- payable by the appellant to the respondent. The appellant is permitted to produce the document before the trial Court and the trial Court after affording an opportunity to both the parties shall dispose of the same in accordance with law. Both the parties are directed to appear before the trial Court on 28.04.2015.