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TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 1028
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....h on 24-01-2004. Subsequently, the accused paid another sum of Rs. 10,000/-, still retaining a balance of a sum of Rs. 4,00,922/- towards the sale consideration. However, at the persistent demand made by the complainant, the accused issued a cheque for a sum of Rs. 4,00,922/- drawn on Sri. Murugharajendra Co-operative Bank Limited, Davangere and dated 15-03-2005 and in favour of Sri. Venkateshwara Tractors, the firm which belongs to the complainant. When the said cheque was presented by the complainant through his banker-M/s. Indian Overseas Bank, Davangere, the same came to be dishonoured for the reason of insufficiency of funds. Thereafter, the complainant issued a legal notice both by Registered Post Acknowledgement Due (RPAD) and under Certificate of Posting to the accused demanding the cheque amount from him. Since the accused did not either respond to the notice or pay the cheque amount, the complainant was constrained to institute a complaint. 3. After appearance of the accused, the matter was contested by him, as such, the trial was held wherein the complainant got himself examined as PW-1 and got marked documents from Exs. P-1 to P11(a). From the accused' side, neithe....
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....he question of treating the said complaint as the one filed by the firm, is not at all acceptable. In his support, he relies upon a judgment of a Co-ordinate Bench of this Court in the case of Om Shakthi SC/ST & Minority Credit Co-operative Society Ltd. Vs. M. Venkatesh reported in 2007 (4) KCCR SN 340. He also submits that the cross-examination of PW-1 clearly demonstrates that, there existed no legally enforceable debt. There is no document to show that any Tractor was delivered to the accused. As such, the presumption under Section 139 of the N.I. Act, which was rebuttable has stood rebutted, as such, the burden is upon the complainant to prove the alleged sale and delivery of the Tractor to the accused. He further submits that the alleged invoice at Ex. P-10 was not produced at the relevant point of time but an after-thought and was produced at a later stage and the said document was seriously disputed by the accused, as such, the same is not proved. Stating that the complainant has not approached the Trial Court with clean hands and that the judgment under appeal does not warrant any interference, learned counsel prays for dismissal of the appeal. 13. As already observed a....
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....stant case, admittedly, the accused has not entered the witness box by himself nor examined any witnesses from his side. He has not even produced any documents and got them marked as exhibits from his side. However, he has subjected the complainant to a detailed cross-examination. In the said cross-examination, the accused has categorically suggested to the complainant that the complainant has not delivered any Tractor to him for which an agreement was pertaining to. However, the complainant did not admit the said suggestion as true. Subsequently, the complainant by himself recalling, produced two documents and got them marked at Exs. P-10 and P-11 respectively. Ex. P-10 is stated to be an invoice cum delivery challan and Ex. P-11 is shown to be a partnership agreement. The accused in the further cross-examination of PW-1 has categorically disputed both these documents and more particularly, his alleged signature at Ex. P-10(b) in the alleged invoice cum delivery challan. 16. A perusal of Ex. P-10 would go to show that it is shown as an invoice cum delivery challan issued by one Sri. Venkateshwara Tractors with the date 24-01-2004 showing that a Tractor with a particular Engine nu....
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....lish with cogent evidence the delivery of the said alleged Tractor to the accused and also to establish that the accused was indeed in receipt of the said vehicle. Therefore, without even getting the disputed signature established as that of the accused, either with any cogent evidence or with expert's opinion, a mere production of Ex. P-10 and getting it marked would not ipso facto prove the alleged delivery of the goods. The non-filling of the blanks which was expected to be filled as proof of delivery of the Tractor also goes to show that, had the goods been really delivered to the accused, then, the complainant or the seller would have definitely filled all those blanks with necessary particulars which would have further proved the delivery of the alleged goods to the accused. The non-performance of the same further creates suspicion in the case of the complainant. Further, it is no where mentioned as to how can there be any difference in the alleged sale consideration, because, the invoice amount is for a sum of Rs. 3,45,000/-, whereas, after adding the advance cash amount of Rs. 20,000/- which is admittedly received by the complainant in cash, the total sale considerati....
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.... The complaint of the complainant will also not withstand for the reason that even according to the complainant, the alleged business transaction of the accused was with one Sri. Venkateshwara Tractors. The cheque at Ex. P-1 is also drawn in favour of the said Sri. Venkateshwara Tractors. Admittedly, the complaint is filed by one Sri. J. Murali Krishna S/o. Sri. J. Veera Raghavulu. However, by showing him as the partner of Sri. Venkateshwara Tractors, learned counsel for the appellant in his arguments vehemently submitted that, the name of the firm Sri. Venkateshwara Tractors since is shown in the description of the complaint in the cause title, it cannot be held that the complaint was not filed by the firm. As such, merely on technical ground, the complaint cannot be dismissed. 19. Had really the complaint been filed by a partnership firm, represented by its alleged Managing Partner, then, the complainant would have definitely shown the name of the complainant as the firm 'Sri. Venkateshwara Tractors', however, in its representation, he could have shown as 'represented by its Managing Partner, Sri. J. Murali Krishna'. Whereas in the case on hand, specifically and ....