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TaxTMI 
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TaxTMI 
2021 (1) TMI 625
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....00 jointly for a sum of Rs. 4,00,000/- dated 23.02.2007 in favour of complainant. The complainant presented the aforesaid cheque on several occasions i.e. on 24.02.2007, 07.03.2007 and 08.03.2007. The cheque came to be dishonoured for the reason 'insufficient funds'. Thereafter, the complainant got issued a legal notice dated 10.08.2007 to both the accused calling upon them to make the payment of dishonoured cheque. Despite receipt of legal notice, neither the accused repaid the amount demanded nor replied to the legal notice. Thereafter, the complainant registered a complaint under Section 138 of the N.I. Act. On cognizance being taken, the accused were summoned by the Court. They pleaded not guilty and claimed to be tried. Accordingly, they were tried. 4. In order to prove the guilt of the accused, the complainant got examined herself as PW.1 and got marked documents as per Exs. P1 to P9. Thereafter, the statement of accused No. 1 was recorded under Section 313 of Cr.P.C. It is relevant to note here that the case was dismissed as against accused No. 2 and the same has attained finality and there is no action taken by complainant to that effect. Accused No. 1 adduced evid....
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....e cheque, the material alternation plea which is taken up by accused No. 1 would not be fatal to the case of the complainant. Hence, by such defence itself, the trial Court ought not to have acquitted the accused. The learned counsel further contends that in Ex. P9-reply to the legal notice, it is clearly stated by accused No. 2 that if the complainant had come to the office personally, he would have paid the amount of Rs. 4,00,000/-. 9. In view of admission made by accused No. 2 in Ex. P.9, it is a clear case of acceptance of legal debt and liability and therefore trial Court ought to have convicted accused for the offence punishable under section 138 of Negotiable Instruments Act. Viewed from any angle, judgment of acquittal passed by trial Court is perverse and arbitrary and the same requires to be set aside and reversed. On these submissions, learned counsel for appellant seeks to allow the appeal and reverse the impugned judgment passed by trial Court. 10. Per contra, learned counsel for respondent who represents only accused No. 1 contends that judgment of acquittal passed by trial Court is based on material evidence and documents produced by both parties and same is in acc....
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....ccused No. 1 is fatal to the case of complainant and on this ground also the acquittal order passed by trial Court is correct and the same is sustainable in law. Learned counsel further contends that it is the case of complainant that Ex. P.1 cheque has been issued on behalf of society i.e., Sasya Shyamala Souharda Credit Co-operative Limited. But non impleading and making the society as party to the proceedings is fatal to the case of complainant in view of section 142 of the Act which contemplates that if cheque is issued by either company, firm or association of persons, then it is necessary that the company has to be made as a party to the proceedings. Hence on this ground also acquittal order passed by trial Court is well reasoned and sustainable. 14. Learned counsel further contends that reply notice produced by complainant PW.1 alleged to have been issued by accused No. 2 to the legal notice as produced in Ex. D.1 and D.2 does not bear any date. Therefore, veracity and contents of Ex. P.9 is doubtful in nature and hence the same cannot be believed. Even in the evidence adduced by PW.1, she has admitted in cross-examination that she does not know who has given the cheque. Th....
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....pts/acknowledgements. 18. In cross-examination, PW.1 has admitted with regard to material alterations on the cheque and admitted the fact that there are two account numbers mentioned on the cheque Ex. P.1. Further she has admitted that she does not know who gave the cheque. Further PW.1 in her evidence has admitted that she has kept a deposit with society which was belonging to her and thereafter again she has stated that deposit was kept by her husband and it is her husband who knows details of other transactions. She has also admitted that it is only her husband who pays tax and she does not know whether her husband has mentioned about present transaction of Rs. 4,00,000/- in income tax returns. These are some of the admissions of PW.1 in her cross-examination. 19. Accused No. 1 has examined herself as DW.1 and relied on two documents Exs. D.1 and D.2 which are legal notice issued by complainant on 24.8.2007. DW.1 in her evidence has deposed that she has not signed Ex. P.1 and the signature alleged to be shows as that of respondent/accused No. 1 is a forged signature not belonging to that of respondent herein. She has further deposed that she has not received any notice and no ....
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....t on fulfillment of the ingredients of proviso (a) to (c) of section 138 of Negotiable Instruments Act, the offence is technically made out. On cognizance being taken by the Court, presumption under section 139 of the Act comes into play in favour of complainant, which reads as under: "139. Presumption in favour of holder It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability." 22. No doubt there is a presumption in law in favour of complainant but the said presumption is a rebuttable presumption. It is for accused to rebut the presumption and prove to the contrary that there never existed or does not exist any legally recoverable debt or liability and if such rebuttal is proved, then the onus would shift on complainant to satisfy such rebuttal made by accused. Now in the present case it is to be seen whether accused has rebutted the said presumption cast under section 139 of the Act. 23. On a careful examination of facts of the case, it is not in dispute that complainant is seeking to recover an amount of Rs. 4,00,000/-....
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.... indorsement by respondent/accused No. 2 who is also supposed to be the signatory of the cheque. It is also apparent on face of Ex. P.1 that there is no indorsement made below the alteration of the account number on Ex. P.1. When this fact was confronted to DW.1 complainant, she has no doubt admitted alterations on the cheque, but has denied suggestion that she altered the cheque. However PW.1 has further admitted in cross-examination that she does not know on what date cheque was given to her. She has further admitted that there is no signature of accused No. 1, respondent herein on Ex. P.9 which was sent by accused No. 2. 27. On a perusal of evidence of PW.1, it is clearly seen that PW.1 does not know about alleged transaction mentioned in the complaint as she has clearly deposed by stating that she does not know as to when and on what date she has deposited a sum of Rs. 68,75,148/- with the society. As stated earlier, at one breath she says that amount is deposited by her and at another breath she says amount is deposited by her husband. It is also apparent that after cross-examination of PW.1 and evidence of DW.1, no other material has been placed before the Court other than E....