TaxTMI 
TaxTMI 
TaxTMI 
2017 (6) TMI 653
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.... the trial court record, are that in the complaint before the Magistrate, the appellant (the complainant) alleged that the respondent (the accused) being on friendly and business terms had availed from the former a friendly loan of Rs. 6 Lakh in August 2012 and had assured its repayment within one month and, for discharge of the said liability, had issued post-dated cheque bearing no.414166 dated 04.09.2012 (Ex. CW1/1) drawn on his account in Corporation Bank, Main Rohtak Road, Mundka, Delhi-41 in favour of the complainant. The said cheque was deposited in the bank but it was returned with memo dated 22.10.2012 (Ex. CW1/2) with report "funds insufficient". The complainant issued a legal demand notice dated 05.11.2012 (Ex. CW1/3) sending it by post (postal receipt Ex. CW1/4) and also by courier (courier receipt CW1/5) on 05.11.2012 to the accused, the article sent by courier having been delivered, as per tracking report (Ex. CW/1/6), on 06.11.2012, but the accused did not make the payment thereby giving rise to the cause of action for complaint to be instituted. 4. The complainant led evidence by examining himself on the strength of his own affidavit (Ex. CW/1A) on which he was cro....
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....he evidence in the present case was wholly misconceived and mis-directed. 9. The offence punishable under Section 138 of Negotiable Instruments Act, is provided as under: '138. Dishonour of cheque for insufficiency, etc., of funds in the account.- Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless - (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the....
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....t in the above provision also does not complete the offence. It is the non-payment of the amount of money represented by the cheque within the statutory period, after service of a notice of demand on the drawer by the drawee of the cheque which constitutes the offence made punishable by the above provision of law'. 12. In the context of prosecution for offence under Section 138 Negotiable Instruments Act, the provisions contained in Section 118 (to the extent relevant here) and Section 139 Negotiable Instruments Act are also relevant and may be taken note of as under:- 118. Presumptions as to negotiable instruments. -Until the contrary is proved, the following presumptions shall be made:- (a) of consideration -that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date -that every negotiable instrument bearing a date was made or drawn on such date; xxx (g) that holder is a holder in due course -that the holder of a negotiable instrument is a holder in due course: xxx "139. Presumption in ....
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.... of the complainant, leading the court to believe that the existence of the consideration was doubtful or illegal. A bare denial of liability obviously cannot suffice. It is the onus of the accused to show the improbability by some evidence on record.' 15. The doubts expressed by the trial court as to the impropriety of the complainant extending a loan of such magnitude to the accused are unfounded, stemming from selective reading of the deposition of the complainant. The trial court did not notice that the complainant (CW-1) having at one stage admitted that he did not have any direct relation or link with the accused, also stated that he and his brother were working together in the same business and since the accused had business terms with his brother, there was due acquaintance and friendly relationship. The complainant did state that he had indicated the loan extended to the accused in his ITR for the corresponding year but the accused did not press home to insist on production of such ITR. The non-production of the ITR in corroboration, or non-examination of the chartered accountant or the brother who may have been present at the time of taking of the loan by themselves do n....