TaxTMI 
TaxTMI 
2020 (3) TMI 986
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....ioner and the respondent will be referred to as accused and complainant respectively. 3.It is the case of the complainant that, on 28.03.2011, the accused borrowed Rs. 1,60,000/- and towards the said debt, issued eight post dated cheques for Rs. 20,000/- each, drawn on Indian Bank, out of which, in this case, we are concerned only with five cheques, viz., cheques dated 28.04.2011 (Ex.P1), 28.05.2011 (Ex.P2), 28.06.2011 (Ex.P3), 28.07.2011 (Ex.P4) and 29.08.2011 (Ex.P5); the complainant presented the five cheques for collection on 30.08.2011 and they were returned on 02.09.2011 with the endorsement "opening balance insufficient" vide return memos (Ex.P6 series); the complainant issued a statutory demand notice dated 10.09.2011 (Ex.P7), wh....
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....s filed the present Criminal Revision Case, before this Court, under Section 397 r/w. 401 Cr.P.C., through Mr.A.K.Kumaraswamy and Mr.S.Kaithamalai Kumaran, Advocates. 9.At the time of admission, this Court granted exemption to the accused from surrendering before the Appellate Court and also granted suspension of sentence and bail on 28.11.2013 in M.P.No.1 of 2013 in Crl.R.C.No.1480 of 2013. 10.When the matter was taken up for final disposal, the counsel for the accused reported "no instructions". Therefore, on 31.01.2020, this Court passed the following order: "The counsel for the petitioner reported 'no instructions'. 2.Therefore, this Court appoints Mr.J.Rajendra Prabu, Advocate (Enrl.No.2011/2011) as Amicus Curia....
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.... consideration to the rival submissions. 16.The complainant, who examined himself as P.W.1, has stated about the loan of Rs. 1,60,000/- that was given to the accused on 28.03.2011, the issuance of eight post dated cheques for Rs. 20,000/- each, including the five impugned cheques herein, the presentation of the five impugned cheques on 30.08.2011 and their dishonour on the ground "opening balance insufficient" on 02.09.2011, the issuance of statutory demand notice dated 10.09.2011 and its receipt thereof by the accused, and the failure of the accused to comply with the demand. In the cross-examination of the complainant (P.W.1), it was suggested to him that the eight cheques were given only as security on the promise that the complainant....
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.... the accused had engineered the complaint and therefore, he (complainant) filled up the cheques, presented them and has prosecuted him (accused). In the cross-examination, the accused (D.W.3) categorically admitted that he had issued the five impugned cheques. He also stated that the cheques were dishonoured by his Bank and he received a notice from the complainant, for which, he did not send any reply. 19.Neither Muthusamy (D.W.2) nor the accused (D.W.3) has clearly stated as to when the eight cheques were given to the complainant. They have also not explained as to why they did not take any action to get back the cheques, once the complainant failed to arrange the loan. In this case, the complainant has not presented the cheques on the....
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....bt or other liability. 21. There is the mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of Section 138 of the Act ... ..." 21. Though the accused can discharge the burden under Section 139 of the Negotiable Instruments Act by preponderance of probability, as held by the Supreme Court in Rangappa Vs. Sri Mohan [2010 (4) CTC 118], even that has not been done in this case. 22. As a result, this Criminal Revision Case is devoid of merits and stands dismissed and the judgments of the two Courts below are confirmed. The trial Court is dir....