TaxTMI 
TaxTMI 
TaxTMI 
2018 (9) TMI 929
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....ovided required logistic and finance to establish the firm by name " Sudha Gas Agency". Sudha is the sister-in-law of the complainant. The land owned by the mother-inlaw of the complainant was leased to Sudha Gas Agency and he constructed godown at his expense. Later for the improvement of the business, working capital of Rs. 10,00,000/- for the agency was availed in the name of Sudha Gas Agency furnishing the property of his wife as security. Power of attorney was given by the accused in favour of the complainant to run the day to day affairs of the agency. The accused in the year 2002 during the month of March wrote to HPCL to record the name of the complainant as partner of Sudha Gas Agency. However, when dispute arose within the family members of the complainant, the accused took side with his in-laws and tried to thrown him out from the affairs of Sudha Gas Agency. Therefore, to settle the issue amicable between them, panchayat was held in the presence of elders on 12.07.2002. Compromise arrived between them. The complainant agreed to relinquish his right and claim in the business of Sudha Gas Agency in lieu of Rs. 31,00,000/- and on repayment of Rs. 9,00,000/- he has invested....
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....forceable debt besides ocular evidence, he has relied upon 48 exhibits. Athinarayanan (P.W.2) and Ganesan (P.W.3) were the witnesses to the panchayat and agreement Ex.P.2 dated 14.07.2002. Subramaniam (P.W.4) Assistant Manager, State Bank of Travancore and Dhamodaran (P.W.5), Manager, Canara Bank, were examined to prove that on the date of presentation of cheques the respective accounts were closed on the instruction of the accused. Jagadeeswar, Senior Manager, HPCL (P.W.6) examined to prove that the complainant was managing the affairs of Sudha Gas Agency and signed in the stock verification register on behalf of Sudha Gas Agency. This witness has identified Ex.P.36 and Ex.P.46, the letters of the accused addressed to the Regional Manager, HPCL expressing his intention to induct the complainant as partner of Sudha Gas Agency. (ii)In defence, the accused has examined two witnesses. Marked 12 exhibits. (The Trial Court has marked the defence documents under 'A' series. The error has been pointed out by the first appellate Court and corrected as 'D' series.). D.W.1 Franklin Asir is the Chief Manager of Tamilnadu Mercantile Bank, Tuticorin, who has deposed about Ex....
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..... The attempt to rebut the presumption failed in view of falsity and contradictions. 5.On appeal, the first appellate Court on re-appriciation of evidence reversed the finding of the Trial Court on the ground that the complainant is not consistent in his case about the actual amount he invested in the business. The contradiction about the amount he invested falsifies his case. No document produced by the complainant to prove he invested Rs. 10 lakhs for establishing Sudha Gas Agency. The reason to pay additional sum of Rs. 30 lakhs to relinquish from the business, sounds improbable, since the income tax return filed on behalf of the Sudha Gas Agency does not indicate its income worth to pay Rs. 30 lakhs for the partner, who relinquishes his right. Without proper account, the amount arrived at settlement is unbelievable. Ex.P.2 has not been drawn in a stamp paper. On comparison of the signatures of the attesting witness P.W.3 found in Ex.P.2 and Ex.P.6. varies. No corroborative evidence with regard to the contents of Ex.P.2. In the absence of documentary proof to show that the complainant was a partner or shareholder in Sudha Gas Agency, the theory of the accused that the subject ....
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....th financially and physically, so the partnership has to be recognized by HPCL. He gave paper advertisement through his lawyer Mr.D.Thomson on 23.04.2002 that Tmt.Kanagamani has no right in Sudha Gas Agency. She has no right to remove Dennis Raja from the service of Sudha Gas Agency, who is still the Manager of the said Agency. Later in the Public notice made on 05.04.2003 given through his Advocate Mr.A.W.D.Tilak, he claims that Sudha Gas Agency is owned by him and Tmt.Kanagamani. While these inconsistency in the accused version improbabilises his defence, the lower appellate Court has erroneously reversed the trial Court's finding. Hence, it has to be set aside. 10.Per contra, the learned Senior counsel appearing for the respondent/accused would submit that, the judgement of the lower appellate court needs no interference. The complainant failed to prove any debt enforceable against the accused. The alleged agreement Ex.P.2 is a fabricated documents. The complainant while employed as Manager was entrusted with signed letter pad and cheques to meet out urgent exigencies. He misused it to fabricate Ex.P.2 agreement and cheques Ex.P. 3 to Ex.P.9. The friendship between the par....
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....the parties. Records perused. 13.The following two points arise in this appeal, which need consideration. (i)Does the complaint not maintainable for its omission to array the Proprietary concern Sudha Gas Agency as accused ? (ii)Does mere denial of facts regarding transaction, sufficient to hold the accused has rebutted the statutory presumption under Section 139 of N.I. Act ? 14.Point (i): This plea is liable to be rejected outright for the simple reason that Section 141 of N.I. Act contemplates procedure in case of offence committed by company. Proprietor concern cannot be equated to a company. The concept of vicarious liability is alien to criminal jurisprudence with few exceptions. N.I. Act is one such exception. Company is a legal entity by itself. Being a juristic body it can sue or be sued. Though company being a juristic body and can sue and be sued, it cannot operate itself. Some human agency is required. Therefore company being the principal, the human agency who operates the company become its agent. So, the natural person either individual or group of individuals who operates on behalf of the company is vicariously held liable for the act he do for or on behal....
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....found in Section 20 had arrived at a wrong conclusion without any basis. In this case, the contention of the complainant is that post dated cheques were issued on 14.07.2002 with specific instruction to be presented on 01.04.2003. It is proven fact that the accused has closed the accounts maintained by him in the name of Sudha Gas Agency much before the cheques were presented for collection. For the first time, only on 05.04.2003 through a public notice in the newspaper through his Advocate Mr.A.W.D.Tilak, the accused has alleged that the cheques were suspected to be stolen by the complainant. This paper publication is marked as Ex.P.45. This public notice is issued in the name of Advocate Mr.A.W.D.Tilak on behalf of M.Kanagamani, wife of Mukkandi Nadar and T.Subbaiah. In this public notice, it is informed to the public that few signed cheques of Sudha Gas Agency maintained at Karur Vaisiya Bank, State Bank of Travancore and Tamilnadu Mercantile Bank (South Branch) were found missing a year back. Concern banks were intimated about the missing. Now they come to know these cheques were taken away by Dennis Raja, son of Rajendiran, former employee of Sudha Gas Agency. If Dennis Raja....
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....the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability". 21.In Kumar Exports v. Sharma Carpets reported in 2009(2) SCC 513, the Hon'ble Supreme Court had considered the provisions of NI Act as well as the Evidence Act regarding presumption and rebuttal of the presumption. It is observed in paragraph 20 of the Judgment as under: "20. ....... The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, ....
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....gency from Karur Vaisya Bank, Tuticorin. From Ex.P.32, it could be seen that land and building worth about Rs. 32 lakhs owned by Navaneethi has been charged under equitable mortgage for loan extended to Sudha Gas Agency. Further the accused has given letters Ex.P.36 and Ex.P.46 to HPCL to treat the complainant as partner of Sudha Gas Agency. However, as per the letter of offer in clause 1.2, there is a specific bar to induct any partner in case of individuals. Therefore, obviously HPCL has not acted upon the request of the accused to induct the complainant as partner of Sudha Gas Agency. From Ex.P.36 and Ex.P.46, it is clearly proved by the complainant that the accused attempted to formalise the induction of the complainant into the business. 25.The documents such as Ex.D.1 series and Ex.D.2, the power of attorney executed by the accused to the complainant to look after the affairs of the business and the lease agreement entered with the mother in law of the complainant and the stock verification records show it was the complainant and his family had been contributing for the business. This further fortified through Ex.D.11 the income tax return filed on behalf of Sudha Gas Agen....
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....is clearly an afterthought. It miserably fails to clear the test of prudence since, no document to show he informed about the theft/missing of those cheques either to the bank or to the police, immediately. His conduct of closing the accounts after issuing the cheques and not intimating the bank about the cheques held by him, does not lend any support to probabilise his defence. 28.Apart from his public notice and reply notice, yet another document he relies to rebut the presumption, is the complaint to police Ex.D.8. The extract of the complaint as found in the general dairy indicates the accused accepts that he knowingly handed over the cheques to the complainant for presenting it in the bank, but he has retained it and trying to misuse it. This complaint has been closed to work out the remedy in the Court of law. If what is found in the case dairy is correct, then the case of the accused that the cheques were missing and stolen by the complainant while he was serving as Manager of Sudha Gas Agency gets falsified. Thus, the contradictory statement of the accused which is mutually destructive coupled with the fact his failure to prove alibi, to wit, his absence at Tuticorin on 14....