Mehtab Motors & Trading Company vs Parmar Electronics and Others

Inderjit Singh, J.

CRM No. 33342 of 2015

Heard.

For the reasons mentioned in the application, the same is allowed. Delay of 286 days in filing the application seeking leave to appeal, is condoned.

CRM No. A-1690-MA of 2015

Applicant-M/s. Mehtab Motors & Trading Company has filed this application under Section 378(4) Cr.P.C. seeking permission for leave to appeal against M/s. Parmar Electronics and other respondents, challenging the judgment dated 11.08.2014 passed by learned Judicial Magistrate 1st Class, Ludhiana, whereby the complaint filed by the complainant (present applicant) was dismissed.

It is mainly stated in the application that accompanying appeal is likely to succeed on the grounds taken therein. Learned Court below has dismissed the complaint on the ground that it was not proved by the complainant that the cheque in question was issued in the year 2005, whereas the same was to be proved by the respondents. Learned Court below has arrived at an erroneous conclusion that the complainant had failed to prove the liability of the accused. It is further stated in the application that from the statements of account, it was established on record that the cheque in question pertains to year 2005.

I have heard learned counsel for the applicant and have gone through the record.

As per the record, the complainant M/s. Mehtab Motors & Trading Company filed a complaint against M/s. Parmar Electronics, Baljit Singh Parmar, Kuldeep Singh Parmar and Mohinder Kaur under Section 138 of the Negotiable Act. As per complainant''s version, it is dealing in the business of electronic consumer appliances like Air Conditioners, LCDs, Televisions etc. and Inderjit Dhamija and Sanjay Dhamija are the partners of the complainant firm. Accused No. 2 to 4 are the active partners of accused No. 1 M/s. Parmar Electronics and all the accused are controlling its day to day affairs and business and as such all the accused are responsible for the acts and conducts of accused No. 1. It is further stated that the complainant, as per the requests and orders placed by the accused, supplied electronic goods under various invoices on credit from time to time and at the time of purchase, the accused assured the complainant that the amount of said invoices will be paid within short period. The complainant made relevant entries of all the invoices in the accounts maintained by it in its regular course of business. After adjusting all the part payment made by the accused, amount of Rs. 6,35,116/- was outstanding against the accused. On the persistent requests of the complainant accused issued cheque bearing No. 417678 dated 22.11.2011 for Rs. 6,35,116/- in order to discharge of their legal liability drawn on Punjab and Sind Bank, Ludhiana in favour of the complainant. On presentation of cheque for encashment, it was returned with remarks ''funds insufficient''. Legal notice was served. When the payment was not made then the complaint was filed.

The complainant produced the evidence. In statement under Section 313 Cr.P.C, accused Mohinder Kaur stated that she is innocent and she has never issued any cheque to the complainant and she never purchased any goods from the complainant and even she never participated in the function of the business of the accused firm as she is not a partner of the firm and moreover, she is a lady of 82-84 years and has been falsely implicated in the present case. Accused No. 2 Baljeet Singh stated that he has not issued the cheque in question in discharge of any legal liability but the present cheque in question was misplaced in the year 2005 and the complainant misused the said cheque in question. Even from the statement of account of the complainant firm, the other cheque of this series of cheque book has been encashed in the year 2005 but the complainant firm forged and fabricated the cheque in question and finally prayed for his acquittal.

Learned JMIC, Ludhiana, after appreciating the evidence, acquitted the accused, firstly on the ground that accused firm has been dissolved in the year 2005 and after dissolution of the firm, Mohinder Kaur was not a partner of accused firm regarding which she has placed on record Dissolution Deed, in which, she has been discharged from the partnership and the earlier firm has been dissolved and this partnership firm has been converted into proprietorship and Baljeet Singh has been declared as Proprietor of M/s. Parmar Electronics. It is further held that Mohinder Kaur has also placed on record Ex. D3/6 which is balance sheet whereby the accused firm has been shown as proprietorship firm. So once the accused firm has been dissolved and the accused Mohinder Kaur ceases to be the partner of accused firm, then she could not be arrayed as accused as she has been summoned in this case being the partner of the accused firm. Further, the cheque is not signed by Mohinder Kaur also. Therefore, the Court held that no offence is made out against Mohinder Kaur and she is acquitted.

The Court also held that it is for the complainant to prove that cheque in question bears the signatures of Baljeet Singh. The Power of Attorney of complainant namely Ram Krishan Sharma has been examined but has no personal knowledge regarding dealing etc. The Court held that the complainant has to rebut the version that the cheque has been misused and also that cheque was not issued as stated and the cheque was misplaced. Therefore, all these facts are in the personal knowledge of the complainant and complainant himself is to depose regarding these facts but he has not come to the witness box. Ram Krishan Sharma, Attorney of the complainant, who is Senior Accountant and maintains the account, stated that accused was having dealing with the complainant firm for the last 7-8 years but when he was asked whether the cheque in question Ex. C2 has been filled by the accused or the complainant, he stated that he cannot tell as to who has filled the amount as well as figure in Ex. C2. He also admitted that he does not know that whose name as payee has been mentioned and he further admitted that present cheque was not filled in his presence. He also stated that he cannot tell whether present cheque in question has been issued by the accused but he stated that the cheque in question has been handed over to him for payment. He further stated that he cannot tell the name of the payee and still further he was unable to tell that when the cheque in question has been issued by the accused last time.

The Court discussed the cross-examination of this witness i.e. Attorney of complainant in detail. It is also stated that the witness stated that he does not know whether the accused firm is partnership firm. He feigned ignorance that whether accused firm has been defaulter. He also feigned ignorance that whether the cheque in question has been issued by Baljeet Singh as a proprietor after the dissolution of the firm. The Court also disbelieved the statement of this witness as this witness stated that he met Kuldeep Singh 3-4 years ago but regarding this, accused has placed on record death certificate of Kuldeep Singh, who has died on 19.11.1999 i.e. about 12 years back, which clearly shows the ignorance and veracity of evidence given by CW-1. The Court further discussed that all the cheques of this series have been encashed etc. in the year 2005, which is clear from the statement of account furnished by the complainant itself.

In these circumstances, learned Magistrate in the impugned judgment held that presumption under Section 118 and 139 of the Negotiable Instruments Act has been duly rebutted.

After perusing the reasonings given by learned JMIC, Ludhiana, I find that the findings are as per evidence and law. In no way, it can be held that the impugned judgment passed by learned JMIC, Ludhiana is perverse. Nothing has been pointed as to which material evidence has not been considered or which material evidence has been misread by the Court below. The judgment dated 11.08.2014 passed by learned JMIC, Ludhiana is correct, as per law and evidence and does not require any interference from this Court.

Keeping in view above facts and circumstances, I find that no ground is made out to grant permission for leave to appeal and therefore, the present application stands dismissed.