TaxTMI 
TaxTMI 
2021 (5) TMI 463
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....t agreement, dated 15.10.2016, wherein the accused had agreed to pay an amount of Rs. 70.00 lakhs to the complainant towards full and final settlement and out of which the accused has paid an amount of Rs. 50,000/- to the complainant towards advance and further agreed to pay the remaining amount of Rs. 69,50,000/- to the complainant on or before 1st November, 2016 and that the accused had issued two cheques, both dated 01.11.2016, bearing Nos. 627842 for Rs. 34,50,000/- and 627844 for Rs. 35,00,000/- drawn on State Bank of Hyderabad, Collectorate Complex, Nalgonda Town and District, for discharge of her legal liability to the complainant and a document was executed on 31.10.2016 in favour of the complainant requesting the complainant to present the said two cheques in the first week of November, 2016 for encashment. When the said cheques were presented by the complainant in his banker i.e., Andhra Bank, Thurkayamjal Branch, the same were dishonoured for the reason that "Payment stopped by the drawer", vide cheque return memo dated 05.11.2016. A notice, dated 15.11.2016 came to be issued to the accused which was served on the accused on 18.11.2016. Though the accused received notice....
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....ecisions are squarely applicable to the facts of the present case. Therefore, the presumption under Section 139 of the N.I. Act is attached to Ex. P1. He further submits that it is for the accused to rebut the said presumption and it is to be seen whether the accused could be successful in discharging the said burden. He further submits that Exs. P1 and P2 were issued to discharge the liability of the accused under Ex. P6. As the accused also admitted her signature on Ex. P6 and she is working as a Government Doctor, she cannot plead ignorance of the contents of Ex. P6. Strangely, the accused as D.W.1 said that she signed on Ex. P6 without reading the contents. Therefore, the version of P.W.1 is highly believable. He also submits that the finding of the trial Court is that the accused has issued stop payment instructions to her banker. But as per the principles of law laid down in M/s. Laxmi Dyechem v. State of Gujarat (2012) 13 SCC 375, the Apex Court held that "the prosecution for the offence under Section 138 of the N.I. Act is permissible even if the cheque is returned for any reason like - Refer to drawer, Account closed, Signature differs, Stop payment instructions", as such ....
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....ues contained the caption of "Not over Rs. 10,00,000/-". He further submits that the accused had aptly rebutted the presumption through her reply notice dated 01.02.2016, wherein it is clearly substantiated factum that she had neither instructed nor assured the complainant to present the said cheques. The accused had discharged the burden cast on her by leading cogent oral and documentary evidence. He also submits that the complainant could not prove either through documentary or oral evidence that the accused had committed the offence under Section 138 of the N.I. Act and on the other hand, she had adduced appropriate oral and documentary evidence to prove that she is innocent of the offence and prayed to dismiss the Criminal Appeal. In support of his contentions, learned Counsel for the 1st respondent relied upon the following judgments: 1. K. Subramani v. K. Damodara Naidu (2015) 1 SCC 99 2. Indus Airways Private Ltd. And others v. Magnum Aviation Private Limited and another (2014) Law Suit (SC) 252 3. G. Ashok Kumar Goud v. P. Anjili Bai and another (2012) 2 ALD (Crl.) 126 (AP) 11. Considering rival contentions and perusing the material available o....
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....e of spending such huge amount. In the absence of any corroborative evidence, the version of the complainant cannot be accepted at its face value. Further in view of the admission made by PW1 that he is an income tax assessee, the question would be whether non-showing of the amount in his income tax return is sufficient to rebut a presumption that the cheque was not issued in discharge of a debt or liability. 15. Identical issue came up for consideration before the Bombay High Court in Sanjay Mishra Vs. Ms. Kanishka Kappor @ Nikki and Another 2009 Crl.L.J. 3777 wherein the Court held as under: "7. It is true that merely because amount advanced is not shown in Income Tax Return, in every case, one cannot jump to the conclusion that the presumption under Section 139 of the Act stands rebutted. There may be cases where a small amount less than a sum of Rs. 20,000/- is advanced in cash by way of loan which may be repayable within few days or within few months. A complainant may not show the said amount in the Income Tax Return as it is repayable within few days or few months in the same financial year. In such a case the failure to show the amount in the Income tax Return m....
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....t any coercion in the presence of following witnesses on this day, month and year as aforementioned." 18. The contents of Ex. P6-settlement deed referred to above would clearly show that two cheques mentioned in the agreement does not specifically disclose one for Rs. 34,50,000/- and another for Rs. 35,00,000/- and that there is no mention with regard to the cheque numbers, date and the amount in Ex. P6. Therefore, the trial Court has rightly held that it creates a doubt whether the said cheques, which were filed in the Court are the same cheques that were mentioned in Ex. P6 or otherwise. Further, the contents of Ex. P6 also disclosed that cheques were issued only for security purpose. After verifying Ex. P1 and P2 cheques, the trial Court found that they were valid each up to Rs. 10.00 lakhs and the signatures of the accused on Exs. P1 and P2 are different from other writings in the cheques. It appears that blank cheques were given to the complainant for security purpose. Further, since the limit mentioned in Exs. P1 and P2 for Rs. 10.00 lakhs only, the amount mentioned in Exs. P1 and P2 exceeding to Rs. 10.00 lakhs, the trial Court has rightly held that the said cheques were ....