Order 2

Order Details: Order
Pdf Text: 1 C. C. No. 2616/SS/2018
Exh.14
ORDER BELOW EXH.14
This is an application filed by complainant for
leading secondary evidence with respect to M.O.U. and payment
receipt dated 20/02/2018.
Brief contentions in the application are as under:
2. This is complaint filed under Section 138 of N.I.
Act. It is contended that accused signed a M.O.U. dated
20/02/2018 and also issued receipt of initial payment of
Rs.2,00,000/- on same day. It is next contended that accused
intentionally kept original documents with him and issued xerox
copies to him and his father. It is further contended that original
M.O.U. and payment receipt are based on the transaction and
are in the custody of accused. He has further contended that he
has filed xerox copy of M.O.U. and receipt of payment on
record. He contends that both these documents are important
and relevant in the case. It is lastly contended that no prejudice
will be caused to the accused, if he is permitted to lead
secondary evidence in regard to said documents. Hence, this
application.
3. Accused has filed his reply at (Exh.27). He has
submitted that application is totally illegal and against the
provisions of law therefore, liable to be dismissed with
compensatory costs. It is further submitted that application is
baseless, misconceived and filed with
malafide intention to
harass him. It is next submitted that complainant has filed false
complaint against him and he is not aware about the
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2 C. C. No. 2616/SS/2018
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transaction. It is also submitted that there is no debt or legal
existing liability against him and no such documents are in his
custody. It is next submitted that allegations made against him
are absolutely false, frivolous and made with an ulterior motive.
It is lastly submitted that great harm will cause to him if
application is allowed. Hence, he has prayed to dismiss the
application with compensatory costs.
4. Heard advocate for both sides at length.
5. Perused complaint. It is contended that
complainant is engaged in the business of online marketing of
various products. Accused was known to him. In the month of
February, 2018 one Harshad Bhai Sanchala introduced him and
his father as estate agent and developer. It is also contended
that middle person also informed the complainant that accused
had purchased paper mill in Roha and looking for buyer for
scrap material and assets lying there. He further states that in a
meeting, accused gave offer to the complainant to purchase said
scrap material and assets lying in his factory for Rs.12,00,000/-.
After that complainant and his father accepted proposal of
accused and agreed to pay 50% amount in cash to him and
remaining 50% after taking possession of property/ scrap
material. He says that later on, 20/02/2018 accused signed
M.O.U. with his father for the transaction taken place. He
further contends that he paid Rs.2,00,000/- in cash to the
accused on 20/02/2018 as first installment as per demand of
accused and Rs.3,00,000/- in next two days. It is next
contended that accused issued receipt of Rs.2,00,000/- on
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20/02/2018 but avoided to issue receipt for Rs.3,00,000/-. It is
further contention that accused despite receiving Rs.5,00,000/-
from complainant and his father, refused to give access to them
in his factory for taking scrap material and other property lying
there. So lastly, his father asked accused to return the amount
taken from them. He next states that lastly accused issued post
dated cheque in question as part payment of amount received
from complainant and his father.
6. Prior to leading secondary evidence, party is
required to prove that document was existed and it was
executed. Complainant has come with the case that alleged
M.O.U. and receipt were executed by accused and they are in his
possession. On the contrary, accused submitted that they are not
in his possession. He has also submitted that there was no
transaction taken place between him and complainant or with
his father. Considering the nature of documents regarding
which complainant wants to lead secondary evidence, they must
be either in possession of complainant, his father or accused.
Had said documents in possession of complainant , he would
have been the same on record instead of filing present
application. Accused appears to be signatory of the documents.
So, next inference can be safely drawn that they must be in
possession of accused . The documents appears to be relevant to
the issue involved in the matter. Complainant has made out the
grounds to lead secondary evidence in respect of said
documents. Therefore, application deserves to be allowed. In
the result, I pass following order :
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4 C. C. No. 2616/SS/2018
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ORDER
1) Application is Allowed.
2) Complainant is permitted to lead secondary
evidence in respect of M.O.U. and receipt of
payment dated 20/02/2018.
Date : 20/12/2024
Sd/-
Shri. R.D.Dange
Judicial Magistrate, First Class
63rd Court, Andheri, Mumbai.
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