TaxTMI 
TaxTMI 
2017 (7) TMI 546
X X X X Extracts X X X X
X X X X Extracts X X X X
....at the respondent filed a complaint case alleging that the present applicant had borrowed money Rs. 2,00,000/- for satisfying his urgent business related requirements. As per the applicant, the amount of Rs. 1,00,000/- was paid by cheque No. 1938896 dated 15.06.2013 drawn on Panjab & Sindh Bank, whereas the remaining amount of Rs. 1,00,000/- was paid in cash. The arrangement which was arrived at between the parties for that the applicant shall refund the money within a period of one year. However according to the respondent, the money was not paid and the applicant continuously stalled the demand made by the respondent. Further, after continuous persuation, the applicant agreed to issue a cheque drawn on HDFC Bank bearing No. 130879 of Rs. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gment was called in question by both the parties by filing separate appeals before the Sessions Court, Shivpuri; the appeal preferred by the respondent was registered as appeal No. 280/2015 for seeking enhancement of the punishment imposed by the trial Court, whereas the appeal preferred by the applicant was registered as appeal No. 282/2015 which called in question the veracity of the judgment dated 06.08.2015. The appellate Court decided both the appeal by a common judgment dated 17.05.2016 and rejected both the appeals, thereby giving its stamp of approval to the order dated 06.08.2015. The judgment dated 17.05.2016 has been called in question by filing the instant revision application. 5. The learned counsel for the applicant submitt....
X X X X Extracts X X X X
X X X X Extracts X X X X
....out by the applicant, this Court has no hesitation in concluding that the respondent has duly established that advancement of Rs. 2,00,000/- to the applicant and the attempt made by the applicant to demonstrate that the respondent did not have financial resources to advance such a huge amount of money is nothing more than a bald statement. In this regard, the Court below has rightly recorded its finding in paragraph No. 8 of the judgment dated 06.08.2015. This Court is also in agreement that the conclusions drawn by the trial Court in paragraph No. 12 and 13 to arrive at the finding that the steps prescribed under Section 138 of the Negotiable Instrument Act have been meticulously followed by the respondent, before maturing the case for pre....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts below proceeded to hold that the defence raised by the appellant has not been proved, which, in our opinion, is not correct. He did not know that the said cheque had not been encashed. He replied to the notice thinking that one of the cheque has been misused. There is nothing on record to show that he knew that one of the cheques was still with R.G. Bhat. 38. Disputes and differences between him and R.G. Bhat stood established by admission of the respondent himself. Similar industry was being run by R.G. Bhat although he was acting as the constituted attorney of the appellant. According to the appellant, R.G. Bhat had cheated him. The counterfoil showed that not more than Rs. 20,000/- had ever been withdrawn from that bank at a time. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arghese & Anr. [JT2007 (13) SC 222], this Court held: 10. The High Court was entitled to take notice of the conduct of the parties. It has been found by the High Court as of fact that the complainant did not approach the court with clean hands. His conduct was not that of a prudent man. Why no instrument was executed although a huge sum of money was allegedly paid to the respondent was a relevant question which could be posed in the matter. It was open to the High Court to draw its own conclusion therein. Not only no document had been executed, even no interest had been charged. It would be absurd to form an opinion that despite knowing that the respondent even was not in a position to discharge his burden to pay instalments in respect o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ition that it exists. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man. [See also K.N. Beena v. Muniyappan and Another (2001) 8 SCC 458] 42. We assume that the law laid down therein is correct. The views we have taken are not inconsistent therewith. 43. But, we may at the same time notice the development of law in this area in some jurisdictions. 9. In the instant case the applicant has failed to rebut the presumption to place the onus on the respondent to come with b....