Unknown vs State Of Maharashtra on 18 October, 2011

Bombay High Court
Unknown vs State Of Maharashtra on 18 October, 2011
Bench: K.U. Chandiwal
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                                                                        3100.11




                                                                    
     rng
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                            
          CRIMINAL APPELLATE JURISDICTION
            CRIMINAL WRIT PETITION NO.3100 OF 2011
     Pradip S.Dixit
     Aged about 49 yrs,
     Occu: Business having address




                                           
     at Hotel Shantidoot
     Opp Hindmata cinema,
     Babasaheb Ambvedkar Rd,
     Dadar (E) Mumbai            .. Petitioner




                                 
                    vs
                   
     1.State of Maharashtra
     2.Mr.Lalit More
     aged 44 yrs,
                  
     Prop.M/s Alcto Control Systems
     having address of office no.2
     Sankalp,A wing, Film city Rd,
     Malad (E) Mumbai-97         ..               Respondents

Mr.K.H.Giri for Petitioner
Ms.R.V.Newton APP for State
CORAM: K.U.CHANDIWAL, J

DATE: 18th October, 2011
ORAL JUDGMENT

Rule. Rule made returnable forthwith. No

notice to the Respondent no.2

1. Heard learned counsel for the Accused-

Applicant. The conviction recorded by the
th
learned Metropolitan Magistrate, 7 Court,

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Dadar, Mumbai by order dated 10.5.2011 was

questioned before the learned Sessions Court in

Criminal Revision Application No.118 of 2011.

By an order dated 19.9.2011 the learned

Additional Sessions Judge dismissed the

Revision. Hence the writ.

2. The

case propounded by the Complainant-

respondent No.2 was, he has carried out

activities of supply of CC TV cameras and lodged

installations at hotel of the Accused-Applicant.

It was on going process of 4/5 bills since 2007,

2008. There was another contract in January,

2009. Contract of January,2009 was extended up

to June, 2009. After the work as per schedule

in discharge of liability the Accused-Applicant

has issued a cheque dated 7.5.2009 drawn on

Allahabad bank in the sum of Rs.3,50,000/-

(Three lacs fifty thousand only). The said

cheque on presentation was dishonoured.

Consequently, statutory notice was issued. The

Accused-Applicant denied that the cheque was in

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discharge of the entire liability, as according

to the Accused-Applicant still the work was left

to be completed and certain deficiencies were

noticed by him. After statutory notice complaint

was filed. Process was issued to the accused.

The accused claimed that he has issued a blank

signed cheque in favour of the Complainant for

security

and without completing the contract

misused the said cheque.

3. Learned counsel for the Writ Petitioner

(accused) has raised following points :

(a) The learned Judge erroneously relied on

bills produced by the
complainant/respondent at the fag end of
the matter.

(b) The verification of the affidavit in
chief is defective.

(c) The reply notice dated 15.6.2009 did
not meet rejoinder from the
complainant/respondent.

d) There does not stand any legally
enforceable liability and consequently no
presumption in terms of section 139 of
Negotiable Instrument Act.

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4. Before adverting to the contentions raised

by learned counsel for the Applicant-Accused one

fact is to be taken into consideration that as

against conviction the revision was preferred by

the accused applicant as stated above and after

getting the Revision dismissed Writ Petition is

filed before this court. Consequently, it is

needless to indicate that scope of Writ Petition

is very limited. Law does not permit to

entertain the said Writ Petition to canvass

factual details and disputes as there is

specific bar under section 397 (3) of Cr.P.C.

However learned counsel has elaborately dealt

with evidence, read the reply notice and even

the arguments tendered before the learned Judge

particularly page 72 (para 6). learned counsel

reiterate reading portions of the judgment the

findings are contrary to the record.

5. Having gone through the judgment, I find no

error of facts or law can be attributed to

either the learned Metropolitan Magistrate or to

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the learned Revisional Court. There is no

miscarriage of justice or failure of justice.

6. The documents which were purportedly

produced below Exhibit 27 by the complainant are

not considered by the learned Judge barring

giving a reference, that such documents were

indeed

produced by complainant for court’s

satisfaction as asked by learned Judge.

7. On the point of verification learned counsel

for the Applicant-Accused has pointed to chapter

7 of Criminal Manual dealing with affidavits and

relied on the judgment reported in:

(1) AIR 1970 SUPREME COURT 652 (AAK NAMBIAR
VS UNION OF INDIA & ANR) para 11 therein.

2) MR.EVAN NORONHA VS MR./LLOYD JOSEPOH
SIQUEIRA 2009 All MR (Cri) 1058.

(3) 1989 (1) Bom. C.R.337 (RAJENDRA
GANDHI VS STATE OF MAHARASHTRA)

In the matter of AKK NAMBIAR, observations

of Their Lordships in para 11 being of

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importance are produced hereinafter:

11. The reasons for verification of

affidavits are to enable to court to find
out which facts can be said to be proved on
the affidavit evidence of rival parties.
Allegations maybe true to knowledge or
allegations may be true to information

received from persons or allegations may be
based on records. The importance of

verifications to test the genuineness and
authenticity of allegations and also to
make the deponent responsible for

allegations. In essence verification is
required to enable the court to find out as
to whether it will be safe to act on such
affidavit evidence. In absence of proper
verification, affidavits cannot be admitted

in evidence.

8. In the light of the observations of the

Supreme Court let us see the factual details of

the present case. At page 23 of the petition,

verification of the Affiant/Complainant is

reproduced, which reads:

Verification

I,Lalit More, the Complainant above
named, aged 43 years, Prop.of M/s
AutoControl Systems, having office
No.2 Sankalp, A-wing, Film City Road,
Malad (E) Mumbai 400 097, do hereby
state and declare on solemn

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affirmation that whatever stated in
foregoing paragraphs above are true

and correct to the best of my
knowledge and belief.

Solemnly affirmed at Mumbai

this 24th day of November,2010

Complainant

Explained & Identified by me
ig s/d

(S.H.Tiwari) Advocate High Court

Wadala, Mumbai-400 031. Before me,

Learned counsel submits that this verification

is short of informing that what are facts to the

personal knowledge of the Complainant and what

he derived from the source from the Attorneys.

9. There cannot be quarrel on legal

proposition and also the guidelines indicated in

the Criminal Manual as to how affidavit are to

be sworn in. However, verification in the

instant case needs to be seen on the factual

matrix as it was examination-in-chief of the

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Complainant in the form of an affidavit. The

details in the examination-in-chief from para 1

to para 10 informed everything of the personal

knowledge and the transaction the Complainant

(Respondent No.1) had with the accused (Writ

Petitioner). There is nothing in the

examination-in-chief of the Complainant to

borrow that he had gathered certain information

from any other source. There is no garble to his

stand. This position is clear concerning

verification of affidavit as indicated in

section 145 of Negotiable Instrument Act and as

to which contingence affidavit to be read in

evidence in any inquiry. Hence, facts as has

been stated by complainant certainly within his

own knowledge and which is in tune to

requirement in manual and even as per para 11

the Supreme Court indicated in the matter of AKK

NAMBIAR.

10. Learned counsel for the Accused-Applicant

stated that there was no legal enforceable

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liability. He has relied on the judgment of

Hon’ble Supreme court in the matter of (1)

RANGAPPA VS SRIMOHAN 2010 ALL SCR (Cri) 1349 of

this Court (2) In the matter of MR.EVAN NORONHA

vs MR.LLOYD JOSEPH SIQUEIRA 2009 ALL MR Cri)

1058 and (3) in the matter of SESHRAO KRISHNARAO

UMREDKAR VS H.K.PANDE & ANR 2010 (2) Bom.C.R.

(Cri)725.

11. The hon’ble Supreme court has by judgment

in the matter of RANGAPPA VS SRI MOHAN has (2010

ALL SCR (Cri) 1349 dealt with section 139 of

Negotiable Instruments Act. The presumption

mandated in section 139 of the Act does indeed

include the existence of legally enforceable

debt or liability.

Negotiable Instruments Act was enacted with

a specified object of making special provision

by incorporating a strict liability so far

cheque is concerned. The presumption of

innocence is a human right, however section 139

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raise a presumption in regard to the cheque was

drawn in discharge of debt or other liability.

There is nothing on record to show applicant has

anywhere whispered to dispel the said

presumption in tune to the requirement.

12.

Considering this legal

been enunciated by the Supreme court the factual
position as has

matrix of the present case involve that the

cheque issued by the Accused- Applicant was

certainly as against legally enforceable

liability of the work of installations carried

out by the Complainant/Respondent No.1 at the

hotel of the Accused-Applicant. Deficiences if

any, noticed later on, would not invoke to

dishonour of cheque, in the absence of any

contract.

13. Taking survey of these facts, I do not see

any error in the judgment of conviction. Writ

Petition lacks merit. Rule discharged.

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K.U.Chandiwal, J

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