2020 (9) TMI 637

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....the request of the accused, who is the Proprietor of one M/s.Subramanya Agencies, had supplied goods to him worth Rs. 3,75,224/- on credit under the credit invoices. After deducting the payment made by the accused, on 2.8.2006 still he was due to the complainant a sum of Rs. 79,566/-. Towards dischargal of a portion of the said outstanding due amount, the accused issued two cheques to the complainant bearing No.450377, dated 2.8.2006, for a sum of Rs. 15,000/- and another cheque bearing No.450378, dated 18.8.2006, for a sum of Rs. 20,000/-, both drawn on Vijaya Bank, Tallur Branch, Udupi District. The complainant presented those cheques on 18.8.2006 through his Banker, however, the said cheques came to be dishonoured for the reason of Rs. insufficient funds' on 13.10.2006. Thereafter, the complainant got issued a legal notice on 25.10.2006 to the accused through Registered Post Acknowledgement Due, as well under Certificate of Posting. Though the notice was served, the accused neither replied to the said notice nor met the demand made in the notice, which constrained the complainant to institute a criminal case for the offence punishable under Section 138 of N.I.Act. 3. The ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ed as the account of the drawer was closed. The banker's endorsements which are at Exs.P-5 and P-6 also show that the cheques at Exs.P-3 and P-4 presented by the complainant were dishonoured with the banker's endorsement that the drawer's account was closed. PW-1 has also produced a copy of the legal notice at Ex.P-7, postal receipt, Under Certificate of Posting and postal acknowledgement at Exs.P-8, P-9, P-10 respectively. He has also produced the extracts of the Ledger Account at Ex.P-11 to show the alleged outstanding balance which is said to be due from the accused. The witness was subjected to cross examination from the accused' side, wherein the denial suggestions made by the accused were not admitted as true by the witness. In the light of the above, it was the argument of the learned counsel for the appellant that the business relationship between the complainant and the accused is not disputed, so also, the issuance of cheques at Exs.P-3 and P-4. The dishonour of the cheques for the reason of closure of the drawer's account is also an admitted fact. Stating so, the learned counsel submits that despite all these favourable points in his support, which....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....1-03-2005 and under 29 credit bills on different dates, the goods are shown to have been supplied to the respondent. The total amount is shown at Rs. 3,75,224/-. Through Ex.P-11 - which is the statement of Ledger Account, the complainant has further shown the details of the goods supplied to the respondent on various dates, the amount received by the complainant towards the supplies made and the outstanding liability. Except making denial suggestion, the accused has not made any attempt to deny the correctness of the evidence of PW-1 regarding supply made as well as correctness and authenticity of Ex.P-11. Thus, the complainant through his oral and documentary evidence has shown that he has supplied the goods towards which the accused had remained due to him with certain outstanding liability. 14. Admittedly, the two cheques at Exs.P-3 and P-4 pertain to the account of the accused. No where the accused has denied that he was the drawer of those two instruments, on the contrary, he has taken a defence that the blank cheques have been misused by the Company. Except making that suggestion to PW-1, no where the accused has made any attempt to show as to under what circumstances and ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e existence of a legally enforceable debt, though the said presumption is rebuttable, comes into operation. 17. In the instant case, apart from the legal presumption as per Section 139 of the N.I. Act coming into operation, as observed above, the complainant through oral and documentary evidence has also shown that the supplies of goods to the accused were made and towards the same, the accused was in arrears of payment of money, towards which, he had issued the cheques at Exs.P-3 and P-4. Therefore, the finding of the Trial Court that PW-1 had no authority to lead evidence and the complainant failed to establish the existence of a legally recoverable debt proves to be an erroneous finding. 18. On the other hand, as observed above, the complainant has proved that the accused towards legally enforceable debt, had issued two cheques at Exs.P-3 and P-4, which came to be returned due to the closure of the account of the drawer and the complainant has complied the statutory requirements of issuance of notice within time. The Trial Court judgment deserves to be set aside and the accused is held to be guilty of the offence punishable under Section 138 of the N.I. Act. Accordingly....