TaxTMI 
TaxTMI 
2020 (11) TMI 503
X X X X Extracts X X X X
X X X X Extracts X X X X
....te complaint instituted by the 2nd respondent (complainant) against the revision petitioners/accused 1 and 2 alleging commission of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I.Act'). Parties are hereinafter referred to as 'the complainant' and 'accused' according to their status in the trial court unless it is otherwise stated. 3. The case of the complainant in brief is as hereunder:- The complainant, M/s.Choice Transport & Logistics, a division of Choice Trading Corporation Ltd. is doing business in the field of shipping and various other fields and is a steamer agent of M/s.Hyundai Merchant Marine Company Ltd. The 1st accused M/s.Euro Asean Trade Links is a partnership firm and the 2 nd accused is the Managing Partner of the said partnership firm. The 2 nd accused who is the Managing Partner of the 1 st accused had approached the complainant to ship their cargo through the complainant and accordingly the complainant shipped their cargo which contained 2500 cartons of frozen ribbon fish in a container No.HDMU 5460715 through the complainant per vessel 'MV Eagle Sky' Voy-....
X X X X Extracts X X X X
X X X X Extracts X X X X
....well as the averments in the complaint clearly spell out that the complainant is actually the steamer agent of M/s.Hyundai Merchant Marine Company Ltd. and the amounts are claimed as due on the account of the shipping done through the said steamer company. According to the learned counsel for the revision petitioners, Ext.P3 bill of lading very clearly indicates the same. If that be so, it was contended that the amount due was that of M/s.Hyundai Merchant Marine Company Ltd. for whom the so called complainant stood as an agent. Relying on Section 230 of the Indian Contract Act and various decisions of the Apex Court and the High Courts, the learned counsel contended that an agent cannot personally enforce contract on behalf of principal except in the circumstances mentioned in the said Section. It was further contended that there was no special contract between the principal and agent in this case and no legally enforceable debt was due to the complainant who was only an agent. 7. The learned counsel appearing on behalf of the 2nd respondent on the other hand would submit that the accused issued the cheques in favour of the complainant pursuant to a transaction between them a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. 9. PW1 the Legal Officer of the complainant company was examined for and on behalf of the company by virtue of Ext.P1 authorization adduced evidence to show that the complainant company is doing business in the field of shipping and various other fields and is the steamer agent of M/s.Hyundai Merchant Marine Company Ltd. He would further testify that the 1st accused M/s.Euro Asean Trade Links is a partnership firm and the 2 nd accused is the Managing Partner of the 1 st accused firm. According to him, the 2nd accused in his capacity as the Managing Partner of the 1st accused approached the complainant to ship their cargo and accordingly shipped their cargo to Pusan on 31.10.2002 by Ext.P3 bill of lading dated 31.10.2002. The freight and other charges for the shipment due from the 2nd accused to the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Section 138 of the NI Act it is clear that the ingredients which are to be satisfied for making out a case under the provision are: (i) a person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account for the discharge of any debt or other liability; (ii) that cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (iii) that cheque is returned by the bank unpaid, either because the amount of money standing to the credit of the account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with the bank; (iv) the payee or the holder in due course of the cheque makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within 15 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; (v) the drawer of such cheque fails to make payment of the said amount of money to t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unts due on account of the shipping was done through M/s.Hyundai Merchant Marine Company Ltd. for whom the complainant stood as an agent. The accused had not offered any explanation as to why they had issued Exts.P5 series cheques to the complainant. 14. The conclusions drawn by the trial court and the appellate court to convict the accused 1 and 2 are perfectly legal. The cheques in question were drawn for consideration and the holder of the cheques received the same in discharge of an existing debt. Thereafter, the onus shifts on the accused to establish a probable defence so as to rebut such presumption, which onus has not been discharged by the accused. Once the cheque is proved to be issued, it carries statutory presumption of consideration under Sections 118 and 139 of the N.I.Act. Then the onus is on the accused to disprove the presumption at which they have not succeeded. 15. It is well settled law that when concurrent findings of facts rendered by the trial court and appellate court are sought to be aside in revision, the High Court does not, in the absence of perversity upset factual findings arrived at by the two courts below. It is not for the revisional court to ....