TaxTMI 
TaxTMI 
2021 (6) TMI 465
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.... the respondent who was the complainant in the Trial Court. The Sessions Judge's Court in its order dated 25-06-2015 dismissed the appeal, confirming the judgment of conviction and order on sentence passed by the Trial Court dated 22-12-2012 in C.C. No. 1454/2009. Aggrieved by the said judgment, the accused has preferred this revision petition. 2. The summary of the case of the complainant in the Trial Court is that, the accused had purchased gold ornaments from him on 21-04-2009 as per invoice/Bill No. 1410 dated 21-04-2009. Towards the payment of the same, the accused had issued a cheque bearing No. 400071 dated 23-07-2009 for a sum of Rs. 13,80,000/- drawn on Vijaya Bank, Falnir Branch, Mangalore. When the said cheque was presented for realisation by the complainant, the same came to be dishonoured and returned with the banker's shara 'insufficient funds'. The complainant issued a legal notice to the accused, demanding the payment of the cheque amount. Though the accused sent a detailed reply to the said notice, but he did not pay the cheque amount, which constrained the complainant to institute a criminal case against him for the offence punishable under S....
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.... same has not been proved. There is no evidence to show that, the said transaction has been mentioned by the complainant before the Commercial Tax Department authorities, as such, the alleged sale of gold by the complainant to the accused is not established and that there is no legally enforceable debt between the parties. In his support, he relied upon three judgments of the Hon'ble Apex Court, which are as follows:- [i] In John K. Abraham Vs. Simon C. Abraham and another reported in (2014) 2 Supreme Court Cases 236, paragraph 9 of the judgment, towards which the attention of this Court was drawn by the petitioner, reads as below:- "9. It has to be stated that in order to draw the presumption under Section 118 read along with Section 139 of the Negotiable Instruments Act, the burden was heavily upon the complainant to have shown that he had the required funds for having advanced the money to the accused; that the issuance of the cheque in support of the said payment advanced was true and that the accused was bound to make the payment as had been agreed while issuing the cheque in favour of the complainant." [ii] In K. Prakashan Vs. P.K. Surenderan....
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....t also relied upon three judgments of the Hon'ble Apex Court, which are as follows:- [i] In Kalamani Tex and Another Vs. P. Balasubramanian reported in, at paragraph 14 of its judgment, the Hon'ble Apex Court was pleased to observe with respect to Sections 118 and 139 of the N.I. Act that, the statute mandates that, once the signature(s) of an accused on the cheque or a negotiable instrument is/are established, then, these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. It was also held at paragraph 18 in the same judgment by the Hon'ble Apex Court that, even if we take the arguments raised by the appellants at face value that only blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. [ii] In Rangappa Vs. Sri. Mohan reported in (2010) 11 Supreme Court Cases 441, the Hon'ble Apex Court was pleased to hold that the presumption mandated by Section 139 of the N.I. Act thus indeed include the existence of a legally enforceable debt or liability. However, the said presumption i....
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....rned only one cheque and three cheques had remained with him. Even after clearing the entire loan amount, the said Sri. Praveen Achar did not return the said cheques, but stated that the said cheques were not with him. However, the said statement made by DW-1 was not admitted by the complainant. In the very same cross-examination of DW-1, the accused also stated that, he does not know where the said Sri. Praveen Achar is there at present (then). He also stated that, he has not taken any step against Sri. Praveen Achar for not returning the alleged cheques. He also stated that he has not even issued any notice to the said Sri. Praveen Achar, seeking return of those cheques. Thus, it gives rise to a doubt in the defence taken by the accused that, the alleged cheque at Exhibit P-1 was given by him to one Sri. Praveen Achar. Furthermore, DW-1 in his cross-examination has also stated that, when the legal notice at Ex. P-4 was served upon him, he was aware that, according to him, the cheque at Exhibit P-1 was given by him to Sri. Praveen Achar. However, it is interesting to note that at the earliest point of time, in his reply to the notice, which is at Exhibit D-1, the accused has no....
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....tion, he admitted a suggestion as true that those two cheques were bearer cheques and that the complainant by mentioning as account payee cheques had got the amount credited to his account. The said evidence of PW-2, more particularly, the suggestions made to him in his cross-examination and a perusal of Exhibits P-11(a), P-11(b), P-12 and P-13 would go to show that, a sum of Rs. 50,000/- and a sum of Rs. 1,00,000/- were shown to have been paid by the accused to the complainant through cheques. The debit entries in the account of the accused can be found as on 16-12-2008 and 20-01-2009 respectively. The name of the complainant is also shown in the account statement, which clearly would go to show that, much prior to the date of the cheque at Exhibit P-1, the accused had earlier made two payments to the complainant through cheques, which establishes that the complainant and the accused were known to each other even prior to the alleged transaction. The said contention of the accused that, the complainant was a stranger to him is also proved to be a false one. 17. According to the complainant, the cheque in question at Exhibit P-1 was given to him by the accused after purchasing t....
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....etitioner/accused has not raised any other grounds or addressed any other augments worth to be considered. On the other hand, as observed above, the admitted cheque at Exhibit P-1, of which the accused is the drawer has been dishonoured with the banker's shara of 'insufficient funds' as could be seen in the banker's memo at Ex. P-2 and the debit slip at Ex. P-3. The copy of the legal notice at Exhibit P-4 has been admittedly served upon the accused which is further evidenced in the postal receipt and postal acknowledgement card at Exhibits P-5 and P-6 respectively. The reply sent by the accused as per Exhibit D-1 proves to be untenable and could not able to shaken the evidence of the complainant, both oral and documentary and even the evidence of DW-1 also, could not, in any way, succeed in introducing any doubt in the case of the complainant. On the other hand, the evidence of PW-1 and PW-2 corroborated by Exhibits P-1 to P-13 have clearly shown that towards the legally enforceable debt, the accused had issued a cheque to the complainant as per Exhibit P-1, which came to be dishonored for the reason of insufficiency of funds. Thereafter, despite the complainant iss....