TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 45
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.... revision came be filed by the accused/revisionists. 2. For the sake of convenience, the parties are referred to, as per their ranking before the trial Court. 3. Facts and circumstances giving rise to this revision are: (i) The 2nd and 3rd accused are husband and wife and they were running Motorcycle company at Erode and Salem. In the month of December, 2005 both of them approached the complainant and borrowed a sum of Rs. 10,00,000/- on 18.12.2005 (Ex.P1) as loan for their business purpose on behalf of the 1st accused Firm and in consideration thereof, a cheque was given to the complainant by the accused under the signature of 2nd accused. They also pleaded of financial crunch and ensured to pay back the amount to the complainant within....
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.... Thereafter, the accused Firm suffered huge loss in business and that the Principal i.e. New Royal Enfield Motor Cycles also sent a notice to cancel the dealership and at that time Mohan requested the accused to recommend his name. As the accused did not agree for that, the said Mohan, has misused the blank cheques. D.W.2 also stated that blank cheques were misused by the said Mohan. (iii). The complaint preferred by the complainant/ respondent was taken cognizance in ST.C.No.1536 of 2006. After due trial, the learned Judicial Magistrate No.IV, Salem found the accused guilty under Section 138 of the Negotiable Instruments Act and imposed sentence to undergo one year Simple Imprisonment each and also to pay a fine of Rs. 5,000/- each and i....
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....d that the 3rd accused has not at all been in charge of the day-to-day affairs of the Firm. When that being so, the conviction imposed as against the 3rd accused is not all sustainable. Hence, the learned counsel prayed for allowing the revision. 6. On the contrary, it is the contention of the learned counsel for the complainant/respondent that the defence set up by the accused i.e., the blank cheques given by the accused to one Mohan has been misused by the complainant is only after thought and that, there was no whisper or whatsoever in the reply notice about the said defence. According to the learned counsel, only during trial, the said defence was introduced and that the same has also been falsified by their own document, i.e Ex.D10. T....
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....s and that the presentation of cheque for encashment and dishonour has also been clearly established by adducing oral and documentary evidence. 9. Admittedly, P.W.2, Assistant Manager, ICICI bank and P.W.3, Bank Manager, Syndicate Bank, were examined and they have spoken about the presentation as well as dishonour of cheque in question. The Return memo Ex.P3 has also been filed. There is no dispute with regard to the signature of 2nd accused in Ex.P1 cheque. Ex.P5 has been filed to show that the complainant has issued a notice within the statutory period. In reply notice, Ex.P7, except denying the transaction, there is no whisper, whatsoever made by the accused about the present defence taken by them that the cheque in question was given t....
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....ion as to whether the presumption whether stood rebutted or not, must, therefore, be determined keeping in view the other evidences on record. In a case of this nature, the background fact and the conduct of the parties together with their legal requirements are required to be taken into consideration. In the case on hand, as discussed supra, the entire oral and documentary evidence, would clearly prove the fact that Ex.P-1 cheque has been issued only for discharging the legally enforceable debt. The cursory glance at the cheque in question would leave no doubt that the same is undisputedly signed by the 2nd accused. At the risk of repetition, this Court once again points out that the signature, presentation as well as dishonour of cheque h....
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....uld clearly prove one fact that the defence of the accused is not true and in fact, the same has been taken only to non suit the complainant. Therefore, this Court is of the view that the accused has not discharged any statutory presumption attached to the cheque. Therefore, the oral and documentary evidence adduced by the accused are in no way helpful to dislodge the legal presumption. 15. In this back ground, it has to be analysed as to whether the 3rd accused is also liable for the act committed on behalf of the Firm. Though P.W.1 would depose that both 2nd and 3rd accused came together and borrowed the amount, it is to be noted that the cheque in question was signed only by the 2nd accused, the husband of the 3rd accused. Further, ther....