RAKESH CHAJJER Vs. STATE OF MAFARASHTRA

JUDGEMENT

(1.) This is an application seeking leave to appeal against the acquittal of the present respondent in C.C. No. 6529/SS/2010 passed by Metropolitan Magistrate, 63rd Court, Mumbai vide Judgment and Order dated 06/03/2012. The applicant herein is the original complainant. It is the case of the complainant that the present respondent i.e. original accused had induced the complainant to supply plywood and hardware materials for the saloon of the accused called "Hair Spa" in the month of March-April 2010 and the bill of Rs. 1,74,000/- remained unpaid. The accused had issued 3 cheques with an assurance to the complainant that they would be honored. The cheques were dishonored on account of "Funds Insufficient". The complainant then issued a demand notice through an Advocate calling upon the accused to pay the amounts mentioned on the dishonored cheques within 15 days. The notice was received by the accused on 30/10/2010. The notice was dispatched on 28/11/2010 and were received by the accused on 30/11/2010. The notices could not be served as there were remark "Not known" of one of the addresses. The notice which was sent on other addresses were duly received. The applicant thereafter filed a complaint in the Court of 63rd Metropolitan Magistrate, Mumbai. By Judgment and Order dated 06/03/2012, learned Metropolitan Magistrate had dismissed the complaint. The grounds assigned for dismissal of the complaint were as follows.

(2.) The counsel for the applicant submits that infact the respondent No. 2 herein was an account holder of the firm "Hair Spa" which is in her maiden name Sangita Chalwad. It is further submitted that the respondent No. 2 herein has admitted before the Court that she was in fact residing with Bharti Shah and giving cheques to her friend Bharti Shah. The demand notice was sent to Bharti Shah for the purpose of keeping her posted that a notice was sent to the respondent No. 2. It was necessary to send a notice to Bharti Shah as she had accompanied respondent No. 2 to the shop for the purchase of materials. According to the counsel for the applicant, notice was not sent to Bharti Shah but it was a letter of intimation, that the C.C. copy was sent to her. It is further submitted that the present respondent No. 2 is the signatory of the cheque and that she had signed on behalf of "Hair Spa" which would clearly establish that she is the proprietress of "Hair Spa". It is further submitted by the counsel for the applicant that the accused had not denied that the cheque was signed by her. According to the counsel, the fact that the signed cheque was issued in favour of the complainant, presumption ought to have been drawn under section 139 of Negotiable Instruments Act that the cheque was issued towards legally enforceable debt and the accused was liable for offence punishable under section 138 of Negotiable Instruments Act.

(3.) It was the defence of the accused that she had never purchased any material from the complainant's firm. The she was residing with Bharti Ben Shah. She had closed her firm 4 years ago. That she had given blank signed cheques to Bharti Shah. She had introduced Bharti Shah to the complainant and that the complainant and Bharti Shah together have conspired and misused the cheques issued in favour of Bharti Shah. According to the accused, the goods were sold to Bharti Shah who has misused the cheques issued by her.