The learned Magistrate numbericed that the bill produced at Ex.
Thus the accused has discharged the onus of proving that the cheques were number received by the holder for discharge of a debt or liability.
CW 2/A and CW 2/B, statutory numberice at Ex.
Jai Bhagwan Sharma, proprietor of M s. Sharma Carpets, the respondent herein, deals in carpets.
On service of summons the appellant appeared before the Court.
The companyplainant did number produce any books of account or stock register maintained by him in the companyrse of his regular business or any acknowledgement for delivery of goods, to establish that as a matter of fact woolen carpets were sold by him to the appellant on August 6, 1994 for a sum of Rs.1,90,348.39.
He examined two witnesses to prove the presentation and dishonour of the cheques.
The appellant alleged that the respondent had stopped manufacturing carpets and as the cheques were number issued in discharge of any liability, he was number liable to be companyvicted under Section 138 of the Act.
Rajinder Kumar, proprietor of M s. Kumar Exports, the appellant herein, is carrying on business at Panipat.
178 of 2001 in the companyrt of the learned Judicial Magistrate 1st Class, Karnal and prayed to companyvict the appellant under Section 138 of the Act.
The respondent, therefore, filed Criminal Complaint No.
Accordingly, the learned Single Judge companyvicted the appellant under Section 138 of the Act and remitted the matter to the trial companyrt for passing appropriate order of sentence, after hearing the appellant and the respondent.
Under the circumstances the defence of the appellant that blank cheques were obtained by the respondent as advance payment also becomes probable and the onus of burden would shift on the companyplainant.
What is claimed by the respondent is that under the circumstances he had served statutory numberice dated January 19, 1995 calling upon the appellant to make payment of the amount due but neither the appellant had replied the said numberice number made payment of the amount due.
It is the specific case of the respondent that he had sold woolen carpets to the appellant on 6.8.1994 and in discharge of the said liability the appellant had issued two cheques, which were ultimately dishonoured.
Once the testimony of the official of the Sales Tax Department is accepted, it becomes evident that numbertransaction of sale of woolen carpets had taken place between the respondent and the appellant, as alleged by the respondent.
The learned Magistrate referred to the testimony of witness from the Sales Tax Department and companycluded that as numbertransaction of sale of woolen carpets was effected by the respondent during the Assessment Year 1994 95, the defence pleaded by the appellant was probablised.
178 of 2001, acquitting the appellant under Section 138 of the Negotiable Instruments Act, 1881 the Act for short , is set aside and after companyvicting the appellant under Section 138 of the Act the matter is remitted to the learned Magistrate to pass appropriate order of sentence.
His defence was that the bill produced by the respondent indicating sale of woolen carpets was a fictitious one and that blank cheques with his signatures were taken from him by the respondent to enable the respondent to purchase the raw material for him.
No other witness was examined by him in support of his case pleaded in the companyplaint against the appellant.
In view of abovementioned companyclusions, the learned Magistrate acquitted the appellant by judgment dated December 6, 2003.
On the companytrary, the appellant examined one official from the Sales Tax Department, who positively asserted before the Court that the respondent had filed sales tax return for the Assessment Year 1994 95 indicating that numbersale of woolen carpets had taken place during the said Assessment Year and, therefore, sales tax was number paid.
The case of the respondent is that the cheques were deposited in the bank by him for encashment, but those cheques were received back unpaid with remarks insufficient funds.
Feeling aggrieved, the respondent preferred Criminal Appeal No.
It is the case of the respondent that the fact that the cheques were dishonoured for insufficient funds was brought to the numberice of the appellant and on the request of the appellant, the cheques were again presented for encashment in the bank on January 5, 1995, but they were again dishonoured due to lack of funds in the account of the firm of the appellant.
Feeling aggrieved, the appellant has approached this Court by way of filing the instant appeal.
The appellant examined himself to substantiate his defence as DW 1.
946 SBA of 2004 in the High Court of Punjab and Haryana at Chandigarh.
He also examined one Mr. Om Prakash, serving as a clerk in the Sales Tax Department, as DW 2, who stated before the Court that the respondents firm had filed sales tax return for the Assessment Year 1994 95 declaring that numbersale or purchase of woolen carpets had taken place and, therefore, numbersales tax was deposited.
According to the appellant the cheques were in the form of advance payment for supply of carpets, but the respondent had failed to deliver the goods to him.
Though the companyplainant was given sufficient opportunity to cross examine the said witness, numberhing companyld be elicited during his cross examination so as to create doubt about his assertion that numbertransaction of sale of woolen carpets was effected by the respondent during the year 1994 95.
C 4, carbon companyy of bill at CW 2/C, etc.
D 1 wherein the respondent had stated on oath that numbersale or purchase of woolen carpets had taken place during the Assessment Year 1994 95.
The said witness also produced the affidavit sworn by the respondent indicating that during the year 1994 95 there was numbersale of woolen carpets by the respondent.
He was also of the view that the affidavit of companyplainant appellant herein that there was numbertransaction during 1994 95, was number a relevant circumstance.
When sale of woolen carpets had number taken place, there was numberexisting debt in discharge of which, the appellant was expected to issue cheques to the respondent.
052913 dated September 25, 1994 for an amount of Rs.90,348.39 drawn on Panipat branch of Union Bank of India, for discharge of his liability.
The defence of the appellant was that he had agreed to purchase woolen carpets from the respondent and had issued the cheques by way of advance and that the respondent did number supply the carpets.
CW 2/C did number bear the signature of the appellant as buyer to acknowledge its acceptance or companyrectness.
The said witness also produced an affidavit filed by the respondent as Ex.
The bill is neither signed by the appellant.
According to the respondent, the appellant issued two cheques, i.e., one cheque bearing No.
In order to prove his case the respondent examined himself as CW 3 and produced the cheques dishonoured at Ex.
It is the case of the respondent that the appellant purchased handtufted woolen carpets from him on August 6, 1994, companyt of which was Rs.1,90,348.39.
M. Panchal, J. Leave granted.
The instant appeal is directed against judgment dated November 23, 2006, rendered by the learned Single Judge of Punjab and Haryana High Court, in Criminal Appeal No.
On appreciation of evidence the learned Magistrate held that the execution of the cheques was admitted by the appellant and that it was proved by the respondent that those cheques were dishonoured on account of insufficient funds.
946 SBA of 2004, by which the judgment dated December 6, 2003, passed by the learned Judicial Magistrate I Class, Karnal, in Criminal Complaint No.
052912 dated August 25, 1994 for a sum of Rs.1,00,000/ and another cheque bearing No.
However, the learned Magistrate companycluded that it was number proved by the respondent that the cheques were issued by the appellant for discharge of a debt or liability.
