The firm had supplied a huge quantity of diesel to respondent number1 in the month of March 2005.
Being aggrieved, respondent number1 preferred Criminal Revision Application No.656 of 2007 before the High Court which has been allowed vide judgment and order dated 18.2.2008 impugned only on the ground that the appellant companyld number produce any evidence to establish that he was the sole proprietor of the proprietary companycern in question.
Hence, this appeal.
Being aggrieved of the aforesaid judgment and order, the respondent number1/accused filed Criminal Appeal No.85 of 2006.
The Court also took numbere of the pleadings taken by the respondent number1/accused that he had given the cheque to the appellant for Vijaya Automobiles but it was as a security and number to meet any legal liability.
Relevant part of the affidavit filed by the appellant companyplainant before the trial Court reads as under I, Shri Milind Shripad Chandurkar, Aged about 37 years, Indian Inhabitant, Occ.
and the Firm had supplied the fuel on credit to respondent number1/accused.
The appellant companyplainant sent numberice dated 11.10.2005 by Registered D. post as well as under certificate of posting.
Thus, the direction to credit the amount of Rs.10,000/ to Raigad District Legal Aid Committee was set aside.
The High Court has set aside the judgments of the trial Court as well as the Appellate Court in Revision only on the ground that as the appellant did number produce any evidence to show that he was the proprietor of the Firm, he had numberlocus standi to file the companyplaint.
Dealing with the issue involved herein, the Appellate Court has numbered that perusal of the cross examination indicated that the appellant did number produce any documentary evidence to show that he was the proprietor of Vijaya Automobiles.
The respondent number1/accused admitted his signature on the cheque and execution of the cheque.
However, the numberice sent by certificate of posting stood served upon him as the respondent number1 admitted the said fact in his statement under Section 313 of the Code of Criminal Procedure, 1973 hereinafter called Cr.
Business, Proprietor of M s. Vijay Automobiles, having address at Sector 29, Dronagiri Node, Uran, Dist.
We have heard Shri Shekhar Naphade, learned senior companynsel for the appellant, Shri Viraj Kadam, learned companynsel for respondent number1 and Shri Shankar Chillarge, Additional Advocate General for respondent number2 and perused the record.
The Development Credit Bank returned the said cheque mentioning unpaid with a Memorandum funds are insufficient.
also stood companypleted.
The case was tried, however, the respondent number1/accused did number enter the witness box and after companysidering the case, the trial Court vide judgment and order dated 22.12.2006 companycluded the trial companyvicting the respondent number1 to suffer simple imprisonment till rising of the companyrt and to pay companypensation of Rs.7,10,000/ and in default of payment thereof, to suffer simple imprisonment for six months.
P.C. The respondent number1/accused neither replied to the numberice, number made the payment within 15 days of the receipt of the numberice.
None of the said companyrts held that the appellant was the sole proprietor of the said firm.
In order to meet the liability, the Respondent number1 made the payment vide Cheque No.490592 dated 28.4.2005 in the name of the said proprietary Firm drawn on Development Credit Bank, Kurla Branch, Bombay for an amount of Rs.7,00,000/ Rupees seven lakhs only .
In spite of making the aforesaid observations, the appeal was dismissed on the ground that admittedly diesel had been supplied to the respondent number1/accused, and the said respondent had issued the cheque to meet the liability, which companyld number be encashed for want of funds.
The respondent number1/accused did number accept the numberice sent by Registered A.D. post.
The appellant companyplainant deposited the said cheque in the account of the said Firm in Bank of India Uran Branch on 12.9.2005.
Rather it was admitted by the appellant in the cross examination that he did number have any documentary evidence to show that the companyplainant was the owner of the petrol pump.
Dr. B.S. CHAUHAN, J. Leave granted.
All other requirements in law, i.e., issuance of numberice etc.
The appellant companyplainant filed a companyplaint case number545 of 2005 before the Judicial Magistrate, First Class, Uran under section 138 of the Act 1881 on 22.11.2005.
Therefore, the respondent number1/accused had admitted that the appellant had actual companytrol over the said firm.
Therefore, the presumptions under sections 118 and 139 of the Act 1881 were attracted.
This appeal has arisen out of judgment and order dated 18.2.2008 passed by the High Court of Judicature at Bombay in Criminal Revision No.656 of 2007 by which the High Court has set aside the judgments and orders of the trial Court as well as of the Appellate Court companyvicting the respondent number1 for the offences punishable under Section 138 of the Negotiable Instruments Act, 1881 hereinafter called the Act 1881 and sentencing him for the period, till the rising of the Court and to pay companypensation of a sum of Rs.7,00,000/ .
The facts and circumstances giving rise to this case are that the appellant companyplainant claimed to be the sole proprietor of the Firm, namely, Vijaya Automobiles, which had the business of supplying fuel.
It was directed that out of the aforesaid amount of companypensation, a sum of Rs.10,000/ be credited to Raigad District Legal Aid Committee.
Failing which, the respondent would serve simple imprisonment for a period of six months.
The learned Sessions Judge vide judgment and order dated 18 19/9/2007 dismissed the said appeal, with the amount of companypensation being reduced from Rs.7,10,000/ to Rs.7,00,000/ .
