TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 592
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....tiable Instruments Act, as against the accused therein. 2. C.C. No. 1399/2005 had been filed by the respondents herein alleging that the respondents owed a sum of Rs. 5,67,116/- for the purchase of liquor from the petitioner towards which the respondents as Partners of M/s. Laxmi Traders had issued a cheque bearing No. 158671 dated 31.03.2005 drawn on Canara Bank, Station Bazar, Gulbarga. This the petitioner claim was in discharge of a legally valid debt due and liable to be paid by the respondents to the petitioner. On receipt of the said cheque the petitioner presented the same to their bankers ING Vysya Bank, Parvathi Nagar Branch, Bellary on 31.03.2005 for encashment and to their surprise the same was returned dishonored on 12.05.2005 ....
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....ake payment of fine of Rs. 11,35,000. Out of the said fine an amount of Rs. 11,30,000/- was directed to be paid to the complainant as compensation. In default of the above payment the Court directed the accused to undergo simple imprisonment for six months. 6. Aggrieved by the said judgment of the trial Court, the respondents herein preferred an appeal under Section 374 of Cr.P.C., before the Addl. Sessions Judge, Bellari in Criminal Appeal No. 28/2009. 7. In the said appeal, it was contended that the trial Court has not taken into consideration the fact that the petitioner has not been able to establish any legally valid debt due and liable to be paid. Though there are business transactions, it was for the complainant to produce the docu....
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....ce raised by the respondents was make believe. The First Appellate Court ought not to have disturbed the finding of the trial Court since the fact of dishonor of cheque itself would establish that there was an offence committed by the respondents. She further submitted that the fact that the respondents have admitted to business transactions would give a reasonable presumption that there are financial transactions between the petitioner and the respondents and therefore had issued the cheque towards discharge of debt owned by them to the petitioner. She relies upon the decision in ICDS Ltd. Vs Beena Shabeer and Another reported in (2002) 6 SCC 426 more particularly paragraph No. 10 thereof which is hereunder reproduced for easy reference; ....
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....that immediately on receipt of Ex. P4, legal notice, Ex. P5 to P8 reply notices were issued wherein the respondents had categorically called upon the petitioner to produce duplicate/Xerox of the invoices. They had also stated that on account of certain financial facilities to be extended by the petitioner to the respondents, the respondents had deposited certain blank cheques with the petitioner since the petitioner did not provide such financial assistance. There was no payment due from the respondents to the petitioner. However, the petitioner has misused the blank cheques and presented the same for encashment. On this ground, the respondents at the very initial stage had denied the liability and contended that there is no legally valid d....
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....probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities. 25.3 To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to suppor....
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....the complainant before the trial Court apart from having produced the dishonored cheque (Ex. P1), petitioner bankers memo of dishonor (Ex. P2), respondents-bankers memo of dishonor Ex. P3, legal notice Ex. P4, reply notice Exs. P5 to P8, rejoinder notice Ex. P9 and the complaint in PCR No. 124/2005 (Ex. P10), has not produced any other documents to establish that there is any debt due and liable to be paid. In that Ex. P1 being cheque and Ex. P4 being a demand notice are contended to be sufficient by the petitioner to establish the debt due and liable to be paid by the respondents. The decision in ICDS Ltd. Vs Beena Shabeer, is relied upon by the learned counsel for the petitioner to contend that issuance of cheque itself indicates that the....