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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 informationreceived from persons or allegations may be
based on records. The importance ofverifications to test the genuineness and
authenticity of allegations and also to
make the deponent responsible forallegations. 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 admittedin 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
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affirmation that whatever stated in
foregoing paragraphs above are trueand 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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