TaxTMI 
TaxTMI 
2017 (5) TMI 1116
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....10.2016. Challenging the same, the present revision has been filed. 2. The case of the complainant is that, the complainant was engaged in manufacturing of gold, diamond and silver ornaments as per the orders placed by the respective persons, and he also used to give the ornaments on credit basis. During the course of business transaction, the petitioner and her husband became known to him, as they were running a jewellery shop in the name of "Ujval Jewellers" at Egmore, Chennai. The accused had business transaction with the complainant from the year 1999. They were purchasing gold ornaments from the complainant on credit basis, and upto May 2003, they have also cleared all the outstanding credit. Thereafter, they failed to pay the amount and there was a default in payment. During the course of the transaction, the accused and her husband availed overdraft facilities with their bankers and the petitioner/accused issued cheques to the respondent/complainant, and he used to withdraw the amount from the bank. Later, the respondent/complainant came to understand that the accused and her husband have diverted the funds for various other activities and failed to pay the amount to the r....
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....e the income tax return containing the loan transaction between the petitioner/accused and the respondent/complainant. The non-production of the accounts as well as income tax assessment order will create a doubt in the respondent's case and only an adverse inference could be drawn against the respondent/complainant. 6. The learned counsel would further contend that even as per the complainant case, he has given a police complaint against the petitioner, thereafter, a compromise was entered into between the parties and during that compromise, the petitioner has agreed to pay the amount and thereafter, she issued the disputed cheque. But in order to prove the compromise, the respondent has not examined any witness nor marked any documents. Apart from that, even as per the evidence of the complainant, the cheque has been handed over to his lawyer at Egmore and even that lawyer was not examined. The cheque has been obtained from the petitioner forcibly by using the police and actually there is no legally enforceable debt or liability on the petitioner. 7. The learned counsel would further contend that even though there is a initial presumption on the petitioner, he rebutted th....
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....ion under Section 139 of Negotiable Instrument Act, and convicted the petitioner, hence there is no reason to interfere with the judgments of the courts below. The learned counsel for the respondent also relied upon the judgment of the Hon'ble Supreme Court in a judgment in T. Vasanthakumar v. Vijayakumar 2010 (11) SCC 441 ( Rangappa /vs/ Sri Mohan) and 2012 (2) MWN (Cr.) (DCC) 141 (Mad.) (T.R.Palanisamy /vs/ Hariharan) and another judgment of this Court in Crl.A.No.745 of 2005 dated 10.03.2015. 9. I have considered the rival submissions and perused the materials available on record carefully. 10. It is the specific case of the respondent/complainant that he was engaged in manufacturing of gold and other ornaments and the petitioner was also running a jewelery shop and purchased jewells and other ornaments on credit basis, and up to May 2003, she has cleared all the debts, thereafter there was a due in payment and she failed to discharge the liability. Hence, the respondent was forced to give a police complaint, thereafter, there was a compromise and in the said compromise, the petitioner agreed to clear the dues, for which, the disputed cheque was given to the respondent a....
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....& Pharma (P) Ltd.,), held that the 'stop payment' issued by the drawer will also come within the purview of Section 138 of Negotiable Instruments Act. And held as follows: " The authority shows that even when the cheque is dishonoured by reason of stop payment instruction, by virtue of Section 139 the Court has to presume that the cheque was received by the holder for the discharge in whole or in part, of any debt or liability. Of course this is a rebuttable presumption. The accused can thus show that the 'stop payment' instructions were not issued because of insufficiency or paucity of funds. If the accused shows that in his account there was sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. The important thing is that the burden of so proving would be on the accused..." 13. Though Section 139 of the Negotiable Instruments Act includes the presumpt....
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.... the petitioner/accused that as per the notice sent by her, which was marked as Ex.P.8, only the respondent/complainant has borrowed a sum of Rs. 45,00,000/- from her and promised to repay with interest and he has also executed a pronote for the same and on the date of issuance of notice, there is a due of Rs. 55,80,000/- from the respondent/complainant to the petitioner/accused. The notice was sent after filing of the present complaint, and she has also made a reference to the complaint filed by the respondent, but she deliberately failed to mention anything about the disputed cheque. If it is the case of the petitioner/accused that the cheque has been forcibly obtained by the respondent/defacto complainant, she could have mentioned the same in her notice, but the notice is very silent about the disputed cheque. Apart from that, it is the case of the petitioner that it is only the respondent/complainant has to pay a sum of Rs. 55,80,000/-, in that event it was not explained why she has issued 5 cheques to the respondent/complainant, which were also returned on its presentation and the above cheques were marked as Ex.P.6 and the return memos were also marked as Ex.P.7 by the respon....