Maratha Co-op Urban Bank Ltd. v. NI/s Merlin Machinenfabrik Udyambag

(B’ Shri J.S.Shettv and Associates, Advocates.) This Criminal Appeal is filed under Section 378 of the Code of Criminal Procedure praying to set aside the judgment of acquittal dated 14/1 1/2005 passed by the JMFC-IV Court. Belgaurn, C.C.No.330/2004 and convict respondent-accused for offence punishable under Section 138 of Negotiable instruments Act. In CrI.A.No.127/2006 BETWEEN: Maratha Co-op Urban Bank Ltd.. Branch Maratha Mandir, Khanapur Road, Belgaum duly authorised by The General Manager, Shri. Ashok Yallappa Jainoji, Maratha Co-op. Urban Bank Ltd., Basavagalli, Belgaum. (By Shri Varute. Advocate) AND: M/s Merlin Machinenfabrik Udyambag. Khanapur Road. Belgaurn. Represented by the Partner Shri, Snehal Nandkishor Pandit, APPEALLANT

3. Snehal N andkishor Pandit, Age: Major. 0cc: Business, R/o M-12 industrial Estate, Udvambag, Belgaum. Partner of Ms Merlin MachinenfabriL Udyambag, Belgaum. Spu. Anjali Snehal Pandit, Age: Major. 0cc: Business. R/o M- 12 Industrial Estate, Udvambag. Belgaum. Partner of M/s Merlin Machinenfabrik. Udyambag, Belgaum. RESPONDENTS (B Shri J.S.Shettv and Associates, Advocates.) This Criminal Appeal is flIed under Section 378 of the Code of Criminal Procedure praying to set aside the judgment of acquittal dated 141 1/2005 passed by the JMFC-IV Court, Belgaum, C,C.No.580/2004 and convict respondent-accused for offence punishable under Section 138 of Negotiable Instruments Act. In CrLA.No.128/2006 BETWEEN: Maratha Co-op Urban Bank Ltd., Branch Maratha Mandir. Khanapur Road. Belgaum, duly authorised by The General Manager, Shri. Vinavak, Maratha Coop. Urban Bank Ltd., Basaxagalli. Belgaum. (By Shri Varute, Advocate.) 4 AND:

3. M’s Merlin Machinenfabrik Udyambag, Khanapur Road, Belgaum. Represented.by the Partner Shri. Snehal Nandkishor Pandit. a Snehal Nandkishor Pandit. Age: Major, 0cc: Business, R/o M-12 Industrial Estate, Udyambag, Belgaum, Partner of M/s Merlin Machinenfabfrik, Udyambag, Belgaum. Spu. Anjali Snehal Pandit, Age: Major. 0cc: Business, Rio M-12 Industrial Estate, Udyambag, Belgaum, Partner of M/s Merlin Machinenfabrik, Udyambag, Belgaum. .RESPONDENTS (By Shri J.S.Shetty and Associates. Advocates.) This Criminal Appeal is filed under Section 378(4) of the Code of Criminal Procedure praying to set aside the judgment of acquittal dated 14/11/2005 passed by the JMFC-W Court, Belgaum, in C.C.No.500/2005 and convict the respondent-accused for the offence punishable under Section 1 38 of Negotiable Instruments Act. These appeals coming on for final hearing this day, the Court delivered the following: JUDGMENT Heard the learned counsel for the appellant and the learned counsel for the respondents. a

2. The facts briefly stated are, as follows: The appellant herein was the complainant before the Court below alleging an offence punishable under Section 138 ot Negotiable Instruments Act, 1881 (hereinafter referred to as the .I.Act. for brevity), against each of the respondent. Hence three separate cases were tiled. The same were tried together and in the course of evidence, it transpires that the appellant, which is a bank, had not produced the original documents. This lacuna was not set right even though the appellant had an opportunity to do so and it is in that background that ultimately by a common judgment. the Court below has rejected the complaint. on the prirnar ground that the original books of accounts not having been produced, though the computer print out of the same were produced, the complainant had failed to establish its case.

3. The learned counsel for the appellant would therefore restrict his contentions and would submit that there was admittedly a default on the part of the complainant, in not having produced the original documents. Ii is not i case where the original documents were not available. fhe same was not produced oni on account of inadvertence and for want of diligence and therefore would seek 6 indigence of this Court for a remand of the matter, with permission to produce the original documents. notwithstanding the lapse of time, since, as on the date of the original complaint as the appellant would be certainly in a position to establish his case by producing the said original documents and the same is sought to be produced before this Court to demonstrate that it was very much available with the appellant and was not produced only in the background as aforesaid.

4. The learned counsel for the respondent on the other hand would seriously oppose the present appeals and would point out that the appellant being a bank was certainly not disabled from producing the original documents, which was a primary requirement in order to establish the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The same not having been. produced, would have enabled the respondents to set up a defence that the cheques were not issued in discharge of a legal liability and that has been accepted by the Court below. As admitted by the appellants, this complaint was of the year 2004 and the proceedings having rim their course before the Court of Magistrate and having culminated in a judgment dated 14.1 1.2005. the present appeals I 7 being allowed at this remote point of time would cause immense hardship and injury to the respondents who are again be driven to the further proceedings before the Magistrate, for no fault of the respondents, and when the appellant has miserably failed to establish its case. He would therefore submit that there is no warrant for consideration of the concession, which the appellant seeks before this Court.

5. Given the above facts and circumstances in the face of there being no denial that the original document is in fact existence and it was on account of a default of the concerned that the same was not produced before the Court below, interests of justice would demand that the appellant be given an opportunity to produce the original documents, which is a formality, but a necessary formality, that ought to have been complied with in the first instance. Therefore, if the respondents who would be put to some inconvenience, adequately compensated inconvenience that would be caused in having to undergo the further proceedings that would entail, ends of justice would be met. Accordingly, leaving all contentions open. the appeals are formally allowed and the judgment of the Court below is set aside with liberty Is 8 to the appellant to produce the original documents in each of the cases. which was not produced in the first instance before the Court below and to permit the appellant to canvas its case afresh, on merits. In the event that the respondents should seek to adduce any rebuttal evidence, the Court shall also grant such liberty to do so and the case shall be addressed ati’esh on such material in accordance with law. subject to the appellant paying .lO,OOO/- each. to each of the respondents at the first instance, before the trial Court. Accordingly the appeals stand allowed in terms as above. Sd! ILTOGE Mrk/ -