TaxTMI 
TaxTMI 
2020 (1) TMI 935
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll return within 3-4 months. The appellant provided Rs. 12,50,000/- to the respondent because at that time, appellant could have collected only Rs. 12,50,000/-. The respondent received the said amount, but did not return to the appellant within 3-4 months. When appellant repeatedly asked for the money, then on 25/11/2014 respondent provided a cheque worth Rs. 12,50,000/- of his account of the City Branch of Allahabad Bank, Jabalpur. When appellant submitted that cheque on 01/12/2014 for encashment in his account of State Bank of India, Branch, Raja Patna, Damoh, the said cheque had been dishonoured by the bank and returned with an endorsement dt. 09/12/2014 that no sufficient amount found in the account of respondent. Thereafter the appellant sent a demand notice through his Advocate to the respondent dt. 19/12/2014 by registered post, that notice received back with an endorsement that the respondent refused to receive the notice. Notice received back on 22/12/2014. Thereafter the appellant submitted a criminal complaint against the respondent. 3. Learned trial Court after stating the particulars of the offence to respondent, recorded the evidence adduced by both parties. Respond....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erused the evidence adduced by both the parties. No doubt, the respondent who was accused before the trial Court has not entered into the witness box and not recorded his statement before the trial Court. Father of respondent, Narendra Singh Saluja (DW-1) has been examined on behalf of the respondent. 08. Perused the statement of appellant-Man Singh (PW1) who submitted an affidavit of the chief -examination. This witness has been cross-examined by the counsel for the respondent. Appellant-Man Singh stated in affidavit that respondent is his friend. Respondent was doing the contractor work together with his son namely Mayank and in the month of June, 2014 requested for borrowing the money to the tune of Rs. 15,00,000/- with a promise that the money would be returned within 3-4 months. This witness arranged for the money collected from his relatives and friends and could only arranged Rs. 12,50,000/- in cash. Respondent agreed to receive that money, then this witness provided the money to the respondent. This witness further stated that when the respondent did not return the money after four months, then he insisted upon him, thereafter he provided a cheque of Rs. 12,50,000/- of h....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions, he received the money from his wife. In para-18, this witness categorically stated that his wife is running the shop of Paras Krishi Seva Kendra and when he received the money from the shop of his wife he did not know whether entry of that transaction had been entered in the account book. In para-20 this witness further categorically stated that the respondent received Rs. 12,50,000/- in the month of June, 2014, but the date has not been mentioned in the complaint because the respondent had received the money at so many occasions. This witness in para-20 has not explained how much amount he provided from his pocket and how much amount received from the other relatives and friends. This witness categorically stated that he has not mentioned such transaction in the income tax return. 11. In para-21, this witness further explained that he provided Rs. 2,50,000/- from his own. This witness in so many times categorically stated that he received the money from his wife and his wife is running the shop of Paras Krishi Seva Kendra, however, in para-20 this witness stated that he did not know how much amount she earned from the shop and this fact can be asked to his wife, but, this....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he area of Damoh and Sagar. But, this witness admitted that his son i.e. respondent did the work in District Damoh and Sagar. 16. After perusal of the whole statement of all the witnesses, it reveals that it has not been denied by the respondent before the trial Court that Ex.P/1, questioned cheque, has not been issued by him. He pleaded the defence only that he has falsely been implicated in this false case. Learned trial Court also not found that cheque (Ex.P/1) has not been issued by the respondent in favour of the appellant. Learned trial Court only concluded the fact that the cheque had not been issued for legally enforceable debt after considering so many case-laws. On the basis of evidence adduced by both the parties, this Court is of the view that the appellant succeeded to prove that the cheque (Ex.P/1) had been issued by the respondent in favour of the appellant. 17. Whether questioned cheque had been issued for satisfying the legally recoverable debt or liabilities ? After hearing both the parties, perused the judgment of the trial Court. Learned trial Court has discussed the case-laws of Krishna Janardhan Bhat vs Dattatraya, (2008) 4 SCC 54 and Venugopal. vs . Madan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpose an evidentiary burden and not a persuasive burden. The standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. Hon'ble Apex Court also held that for rebuttal accused can rely on the material submitted by the complainant . In the present case, the respondent did not appear in the witness box. He has produced his father-Narendra Singh Saluja in the witness box as DW-1 who firstly stated that he is not having any work in Damoh or Sagar District where the applicant resides but admitted in cross-examination that his son did work at Damoh and Sagar. 20. The only evidence available on record for rebuttal is cross-examination of complainant-Man Singh (PW-1). After perusal of the cross-examination of Man Singh (PW-1) as discussed before, this Court finds that appellant Man Singh could not establish the fact that being a Government servant, how he collected the huge amount of Rs. 12,50,000/- for providing to the respondent. This Court is of the view that Man Singh being a Government Servan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....isputed. Both of them were governed by the Government Servants' Conduct Rules which prescribes the mode of lending and borrowing. There is nothing on record to show that the prescribed mode was followed. The source claimed by the complainant is savings from his salary and an amount of Rs. 5 lakhs derived by him from sale of site No.45 belonging to him. Neither in the complaint nor in the chief-examination of the complainant, there is any averment with regard to the sale price of site No.45. The sale deed concerned was also not produced. Though the complainant was an income-tax assessee he had admitted in his evidence that he had not shown the sale of site No.45 in his income-tax return. On the contrary the complainant has admitted in his evidence that in the year 1997 he had obtained a loan of Rs. 1,49,205/- from L.I.C. It is pertinent to note that the alleged loan of Rs. 14 lakhs is claimed to have been disbursed in the year 1997 to the accused. Further the complainant did not produce bank statement to substantiate his claim. The trial court took into account the testimony of the wife of the complaint in another criminal case arising under Section 138 of the N.I. Act in which sh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, 20 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.- For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability" 24. There should be legally enforceable debt between the parties and this Court is of the view that when complainant failed to prove these ingredients, no offence is made out against the respondent for the offence punishable under Section 138 of N.I. Act. 25. Hon'ble Apex Court in the case of Bhaskar Ramappa Madar & others Vs. State of Karnataka, AIR 2009 SC (suppl) 1826 while referring the previous judgment passed in the case of Chandrappa and others Vs. State of Karnataka, (2007) 4) SCC 415 in para-36 has held as under : "36. From the above decisions, in Chandrappa and Ors. v. State of Karnata....