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Judgment
N. Ananda, J.—Crl. A. 1689/2007 is filed against judgment of acquittal of respondent (accused) for an offence punishable u/s 138 of the Negotiable Instruments Act in C.C. No. 26306/2001.
Crl. A. 427/2010 is filed against judgment of acquittal of respondent (accused) for an offence punishable u/s 138 of the Negotiable Instruments Act in C.C. No. 838/2002.
The complainant in both the cases is one Noor Khan. The respondent (accused) is M/s. Ridhi Sidhi Textiles Ltd., represented by its Director Sri Subhash Harlalka. The averments of complaint in both the cases and evidence adduced by complainant in both the cases are similar. Therefore, these two appeals are together taken up for consideration.
I have heard Sri. Kaleemullah Shariff, learned counsel for appellant/complainant.
As per averments of complaint and evidence adduced by the complainant, the brothers of complainant namely Mohamood Khan and Saleem Khan were the partners of M/s. Shazu Fibres and Silks. They had supplied waste silk to accused namely M/s. Ridhi Sidhi Textiles Ltd. represented by its Director Sri Subhash Harlalka. In all, the accused had issued 12 cheques towards payment of price of waste silk supplied by M/s. Shazu Fibres and Silks. Out of 12 cheques, 5 cheques were honoured and 7 cheques were dishonoured. The dishonoured cheques of the instant case are 2 cheques amongst 7 cheques.
As could be seen from the evidence of complainant, he is not related to M/s. Shazu Fibers and Silks and he is not the partner of M/s. Shazu. Fibres and Silks. There was no privity of contract between the complainant and accused. The complainant has sought to establish that he had financed his brothers who had utilized the same for their trading activities.
The accused had caused notice to M/S. Shazu Fibers and Silks and instructed the brothers of complainant not to supply waste silk and also demanded for return of 7 cheques. Thereafter, the complainant and his brothers had entered into Memorandum of Understanding and the same was produced before the court. As could be seen from the Memorandum of Understanding produced by the complainant, the appellant is not a party.
As per the case of complainant, accused had issued dishonoured cheques in favour of complainant. The perusal of dishonoured cheques would reveal, except the signature of accused, other contents of cheque are in different handwriting so also, the date of cheque. In the circumstances, the defence of accused that he had issued 12 cheques in favour of M/s. Shazu Fibres and Silks appears probable. The complainant has failed to establish the circumstances under which the accused became due in a sum of Rs. 35,000/- and Rs. 49,500/- to complainant. The complainant has failed to prove that dishonored cheques were issued to discharge legally recoverable debt.
The basic ingredient of an offence punishable u/s 138 of the Negotiable Instruments Act is the existence of legally recoverable debt. The complainant has to establish legally recoverable debt. Thereafter, the burden would not shift upon the accused to rebut the presumption.
In the instant cases, dishonored cheques are dated 20.03.2000 and 07.06.2000. The cheque dated 20.03.2000 was drawn for a sum of Rs. 35,000/- and the cheque dated 07.06.2000 was drawn for a sum of Rs. 49,500/-.
On perusal of cheques, I find that except the signature of Drawer, other contents of cheque viz., the name of Payee, amount and date are in different handwriting. It appears, blank signed cheques issued by the accused to the brothers of complainant have been misused by the complainant. The learned trial judge has rightly held that complainant has failed to prove an offence punishable u/s 138 of the Negotiable Instruments Act.
On reconsideration of the matter, I do not find any reasons to interfere with the impugned judgment.
In the result, I pass the following:
ORDER
The appeals are dismissed.