DAUNGARSHI MADANLAL ZUNZUNWALA Vs. DEVIPRASAD OMPRAKASH BAJORIA

JUDGEMENT

(1.) The firm M/s. Deviprasad Omprakash Bajoria, through its partner Omprakash Deviprasad Bajoria, non-applicant No.1, filed a private complaint under section 420, read with section 34 of the Indian Penal Code against five accused including the applicant. It was alleged that the transaction for purchase of 42 bales of pressed cotton was done by the applicant for and on behalf of M/s. Madanlal Paliram and Sons, also an accused in the complaint along with the applicant. It was also alleged that the applicant and three other accused persons were partners of the firm M/s. Madanlal Paliram and Sons. After due verification, the learned trial Court had issued process against all the five accused. Two of the accused persons viz. Smt. Lalitadevi Madanlal Zunzunwala and Smt. Meenadevi Rajkumar Zunzunwala came to be discharged in criminal revision application No. 78 of 1979. The trial Court, however, proceeded against the remaining three accused including the applicant. The trial Court convicted the applicant and one Radheshyam for the offence punishable under section 420, read with section 34 Indian Penal Code. The two accused had preferred an appeal to the Sessions Judge, who partly allowed the appeal and acquitted Radheshyam but the conviction of the applicant was maintained for the offence under section 420 Indian Penal Code simpliciter. It is against this conviction, the applicant has preferred this revision application challenging the judgments and orders of the Courts below.

(2.) The relevant facts are that the non- applicant No.1 firm owned and possessed 42 full pressed cotton bales stored in the compound of one M/s. Hans Cotton Industries (Pvt.) limited, Yeotmal. One Ramniwas Pannalal Chokhani (P. W. 2) is said to be a broker in full pressed cotton bales. The applicant, on 5-9-1978, contacted Ramniwas (P. W. 2) on phone for purchase of the cotton bales. As the said broker Ramniwas was authorised by nonss-applicant No.1 to enter into bargain of selling the cotton bales to the applicant, the contract was finalised through him. It was Ramniwas who had discussed the terms of the contract with the complainant Omprakash (P. W. 1) on 6-8-1978. According to the complainant, the price of the goods was fixed at Rs. 4180/- per khandi. It was alleged that the delivery of the said cotton bales was to be made at Yeotmal and the price was to be paid at Yeotmal on delivery of the goods. A representation in that regard was made by the applicant to the complainant Omprakash (P. W. 1) through the broker Ramniwas (P.W.2). In view of the representation, the complainant delivered the said 42 bales of cotton to S. A. Agarwal and Karsandas Manik, the representatives of the applicant, on 7-8- 1978 at. Yeotmal. The goods were loaded in the truck and removed from the premises on 9-8-1978. On the very same day, the complainant requested the applicant to make payment of Rs. 81,835.68 ps. by letter Ex. 41. This letter only stated that the applicant should make arrangement for payment and nothing more. On the same day, a bill for Rs. 81835.68 (Ex. 138) was also sent by the complainant with an endorsement at the bottom Since no payment was made, the complainant continued the correspondence with the applicant in order to secure the payment of the price. The telegrams dated 21-8-1978 and dated 24-8-1978 were sent by the complainant. The applicant, vide his letter dated 30-8-1978, informed Ramniwas (P. W.2) that arrangement was being made for making payment of the price of the bales. It was alleged in the complaint that on 9-9-1978 a cheque was drawn on State, Bank of India, Branch Office, Khamgaon which was handed over to the complainant Omprakash (P. W. 1) through Ramniwas (P.W. 2). This cheque was signed by the applicant. The complainant passed the voucher for receiving that cheque. When the cheque was presented to the Bank for collection on 12-9-1978, it was returned back with the endorsement "refer to the drawer", meaning thereby that the funds were insufficient in the account of the applicant for meeting the obligation of payment of the price. The complainant issued a telegraphic notice and since the applicant did not respond, the complainant filed a private complaint. The trial Court framed two charges as under:

(3.) The learned trial Court, after recording the evidence, acquitted all the accused, including the applicant of the second charge. What is impugned in this revision is the conviction based on first charge which both the Courts below have held to be proved in so far as the applicant was concerned.