TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 808
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....judgment of the court below, i.e., the complainant and the accused. 3. The complaint was filed for prosecuting the accused for an offence u/s. 138 of the NI Act. It was alleged that Ext.P3 cheque for an amount of Rs. 15,460/- was issued by the accused in favour of the complainant company towards the credit purchase of tea made by him, that cheque on presentation was dishonoured for want of sufficient funds, that Ext.P6 notice demanding payment was not heeded to and therefore the accused committed an offence punishable u/s. 138 of the NI Act. 4. PWs1 and 2 were examined on behalf of the complainant and Exts.P1 to P7 were marked. No defence evidence was adduced. 5. The Court below on appreciation of evidence found that the complainant fail....
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....company authorizing PW1 as the PA holder of the complainant company. He gave evidence in tune with the pleadings in the complaint. He deposed that towards the credit purchase of tea made by the accused, Ext.P3 cheque was issued. He specifically deposed that Ext.P3 was signed in his presence by the accused and handed over to him directly. PW2 is the present power of attorney holder of the complainant company. Ext.P14, delivery chalan and Ext.P15, invoice showing the transaction between the complainant company and the accused were marked through him. Ext.P9 ledger extract of the complainant company in respect of the credit transaction with the accused has also been produced and marked through PW1. The Court below on appreciation of evidence f....
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.... of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of S. 138. 10. The Supreme Court of India in Hiten P. Dalal v. Bratindranath Banerjee [ (2001) 6 SCC 16] and in Rangappa v. Sri Mohan [ (2010) 11 SCC 441] held that the cheque shall be presumed to be for consideration unless and until, the Court forms a belief that the consideration does not exist or considers the non-existence of consideration was so probable that a prudent man would under no circumstances of the case, act upon the plea that the consideration does not exist. In Uttam Ram v. Devinder Singh Hudan and Another [ 2019 (5) KHC 179], it was held that wh....
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.... a debt or in discharge of a liability. It was further held that it is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. It was also held that even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under S. 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. Recently in Kalamani Tex and Another v. P. Balasubramanian (2021 (2) KHC 517), the Supreme Court again held that once signature of an accused on cheque is established, then 'reverse onus' clause becomes operative, and in such a situat....
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....lan in respect of the said goods signed by the accused. Exts.P14 and P15 were marked through PW2. There is no much challenge to it. Ext.P9 is the ledger extract in respect of the transaction by the complainant company with the accused. Entry dated 31/1/2006 in Ext.P9 corresponds to Ext.P15 invoice. It is true that the amount shown in Exts.P3, P9 and P15 does not tally. But it is pertinent to note that the debt due to the complainant company as on the date of the execution of Ext.P3 cheque was more than the amount stated in Ext.P3 cheque as evident from Ext.P9. The complainant never had a case that the accused issued Ext.P3 cheque towards the full and final settlement of all the debts due to the complainant company as on the date of the exec....