TaxTMI 
TaxTMI 
2018 (10) TMI 103
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.... 5. 407 of 2006 756 of 1999 822357/ 1.10.1998 Rs.2,05,000/- 6. 408 of 2006 760 of 1998 822370/ 3.10.1998 Rs.3,99,009/- 7. 409 of 2006 1319 of 1999 822371/ Rs.3,99,009/- 8. 410 of 2006 3223 of 1999 822374 / 3.2.99 Rs.3,99,009/- 9. 411 of 2006 3224 of 1999 822361 / 1.2.1999 Rs.2,05,000/- 10. 412 of 2006 4222 of 2001 822356/ 1.2.2001 Rs.1,72,200/- 11. 413 of 2006 4323 of 1999 / 03.03.1999 / Rs.3,99,009/- 12. 414 of 2006 4324 of 1999 822362 / 1.3.1999 Rs.2,05,000/- 13. 415 of 2006 5753 of 1999 657385/ 01.05.1999 Rs.1,94,000 /- 14. 415 of 2006 8498 of 1999 836062 /03.09.1999 Rs.2,34,218/- 15. 150 of 2006 3514 of 2001 348804 /1.12.2000 Rs.1,72,200/- 16. 151 of 2006 1362 of 1999 657379 /1.11.1998 Rs.1,94,000/- 17. 152 of 2006 3226 of 1999 657382 / 1.02.1999 Rs.1,94,000/- 18. 153 of 2006 90 of 2000 657390 / 1.10.1999 Rs.1,94,000/- 19. 154 of 2006 6355 of 1999 657381/1.01.1999 Rs.1,94,000/- 20. 155 of 2006 6730 of 1999 657377 / 1.09.1998 Rs.1,94,000/- 21....
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....d, the appellant company has filed the above said complaints under Section 142 of N.I. Act against the accused for the offence punishable under section 138 of the N.I. Act. 7.Rebutting the contention raised by the complainant/appellant, the respondent herein/accused contented that subject cheques were not supported by consideration. It is the contention of the respondent/ accused that the there was a hire purchase agreement entered by their company with the appellants company, for which pronotes, cheques and other documents have been received from them. On the other hand, the complaint company did not lend any loan as per the hire purchase agreement. Whereas, without lending loan, the complainant/appellant had presented the cheques given by the accused company issued for security purpose. There was no consideration passed on the subject cheques in question. Therefore the question of an offence under NI Act will not arise. 8.Before the Trial Court on the side of the complainant three witnesses were examined and eight documents were marked. On the side of the accused two witnesses were examined and one document was marked. 9.The learned Magistrate upon considering the oral a....
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..... 14.The Learned Counsel for the respondents/ accused would submit that the complainant company has not pleaded in the complainant or in statutory Notice with regard to the earlier agreement dated 16.11.1994 and also the previous transaction between the parties. That apart during the course of cross examination of PW1, he has specifically admitted that no consideration was passed in respect of Ex-R1 Hire Purchase Agreement. Therefore certainly the burden of proof is on the complainant to prove that the cheques in question were issued towards a legally enforceable debt. However, the fact remains that the complainant failed to prove the passing of consideration on Ex- P1. Therefore, the complainant cannot resort asylum under Section 139 of N.I. Act. 15.It is the admitted case that the present hire purchase agreement Ex-R1 was entered into by the parties concerned for the previous transaction. At the same time it is relevant to point out here that the accused has not denied his signatures in any of the exhibits meant for the monetary liability upon the complainant. However, even in the cross examination the accused has not deposed that under some cloudy circumstances, he was con....
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....iability." 19.In this context, it is useful to refer the following Judgment: In the case of Hiten P. Dalal vs Bratindranath Banerjee (2001) 6 Supreme Court Cases 16 "21. The appellant's submission that the cheques were not drawn for the 'discharge in whole or in part of any debt or other liability' is answered by the third presumption available to the Bank under Section 139 of the Negotiable Instruments Act. This section provides that "it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability". The effect of these presumptions is to place the evidential burden on the appellant of proving that the cheque was not received by the Bank towards the discharge of any liability. 22. Because both Sections 138 and 139 require that the Court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the r....
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.... disprove the case of the complainant, the accused is expected to let in reliable documentary evidence and the mere and bare denial will not be suffice to hold that the accused has disproved the case of the complainant successfully. Apart from that the accused has not denied the causing of statutory demand notice, but he has admitted that no reply was offered by him. Though the accused is not legally expected to cause a reply notice, but to disprove the case of the complainant he ought to have taken the steps and stands which are taken during the course of trial. 22.Apart from that section 20 of the N.I. Act would make it clear that once the issuance of cheque is admitted, then it is for the accused to disprove the case of the complainant, hence this court is under the compulsion to reiterate that the mere and bare denial alone would not help the accused to get rid of the case. Therefore the presumption as contemplated under section 139 of N.I. Act is in favour of the complainant and the learned trial judge is fell into error without appreciating the total circumstance of the case and the surrounding legal aspect in this regard. 23.Since the learned counsel for the respond....