TaxTMI 
TaxTMI 
2021 (6) TMI 958
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....plainant instituted a complaint against the petitioner herein for an offence punishable under Section 138 of N.I. Act inter alia stating as under: a) The accused/petitioner herein is known to the complainant for several years and had approached the complainant with a request of loan stating that he is about to get the authorized dealership of HP for which he is required to deposit about Rs. 20,00,000/- within few days and he needs a loan of Rs. 15,00,000/-. It is stated in the complaint that the accused/petitioner herein had shown the complainant some letters in this regard. b) It is stated in the complaint that the accused/petitioner herein told the complainant that once he gets the dealership he would be able to repay the loan. It is stated that believing the representation the complainant advanced a loan of Rs. 15 Lakhs to the petitioner herein in the following manner: i. Rs. 50,000/- was paid by way of cash. ii. Rs. 6,50,000/- was paid by cheque bearing No.963019 dated 15.12.2010 drawn on UCO Bank. iii. Rs. 8,00,000/- was paid by cheque bearing No.967981 dated 20.12.2010 drawn on UCO Bank. The said cheques were duly encashed on prese....
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....acs approx. Instead of making the payment within the assured time of 20 days, he handed over to me another list of computer and accessories to be supplied. Then, complainant told me that in order to clear my dues towards the persons from whom I had purchased the computers, he told me to hand over to him a cheque of Rs.l5 Lacs. Though I was reluctant initially, but on his assurance. I agreed to it and complainant assured me to arrange a loan for me against this cheque through someone else. I had only filled the amount in words and figures on the cheque as well as signed the cheque and other particulars were left blank. However, complainant had not paid me Rs. 6.50 Lacs for which I had supplied him computer and accessories. On the other hand, he has misused the said cheque which he procured from me as a security for getting the loan. However, till date, I have not received any loan against this cheque. The complainant had procured the pronote also from me for getting me the loan and the said pronote is not addressed to any particular person." According to the petitioner, he was to procure material for assembling the computers for supply to the complainant and the ch....
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....as taken back by the complainant. The learned Metropolitan Magistrate observed that though petitioner herein has stated that he was accompanied by one Vijay Bhadana while he was withdrawing the cheque and he had handed over the amount to the complainant himself but in his deposition as DW-4 it was stated by the accused/petitioner herein that the amount of Rs. 6,50,000/- withdrawn by him was handed over to the wife of the complainant in the presence of the said Vijay Bhadana whereas the other sum of Rs. 8,00,000/- was handed over by him to the complainant himself. The learned Metropolitan Magistrate was of the opinion that the said Vijay Bhadana would have been the best witness to prove the innocence of the accused/petitioner herein and the said witness has not been produced by the accused/petitioner herein. The learned Metropolitan Magistrate therefore drew adverse inference against the accused/petitioner herein. The learned Metropolitan Magistrate also rejected the contention of the petitioner that there is no reference of loan in the Income Tax returns of the complainant and that the amount of loan is not legally recoverable as the same was advanced in violation of Section 269 SS....
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....ner herein also contended that the payments have not been shown by the complainant in Income Tax Returns and therefore the entire transaction is illegal and thus no legally enforceable liability remains against the accused/petitioner herein. The learned Additional Sessions Judge placed reliance on the receipt dated 18.12.2020. The learned Additional Sessions Judge accepted the findings of the learned Metropolitan Magistrate that failure on the part of the accused/petitioner herein to examine Vijay Bhadana does not substantiate the case of the accused. The learned Additional Sessions Judge held that the case of the accused that the cheques were encashed and the amount was returned back to the complainant cannot be believed. The learned Additional Sessions Judge therefore confirmed the order of the Metropolitan Magistrate and enhanced the compensation to Rs. 20 Lakhs. i) It is this order which is under challenge in the instant revision petition. 3. Heard Mr. Dheeraj Malhotra, learned counsel for the petitioner, Mr. Shakeel Sharwar Wani, learned counsel for the complainant/respondent No.2 and Mr. Hirein Sharma, learned APP for the State and perused the material on record. ....
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....he complainant had filed a complaint before the Commission of Trade & Taxes on 05.01.2011. He states that there have been other disputes between the parties and the version of the complainant that the loan was given to the petitioner herein cannot be believed. He states that no prudent man will advance loan to a person with whom he has several disputes. The learned counsel for the petitioner also contends that the complainant and Vijay Bhadana are co-accused in many other cases and therefore the petitioner did not examine Vijay Bhadana. He further states that the bank statements of the complainant shows that the complainant never had a closing balance of more than Rs. 2,10,000/- during last three years until the issuance of bearer cheques. He states that on 15.12.2010, the complainant deposited Rs. 5,98,000/- in his bank account just prior to encashment of bearer cheque, bearing number 963019, for an amount of Rs. 6,50,000/-, by the petitioner herein. He states that no common man with reasonable prudence would first deposit cash of Rs. 5,98,000/- and thereafter issue a bearer cheque for withdrawal of cash, on the same day to be given as loan. It is further argued by the learned cou....
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....not open to this Court to hear the petition as an appeal. 6. The scope of the revision petition under Sections 397/401 Cr.P.C. read with Section 482 Cr.P.C. is extremely narrow. The revisional Court is not a court of appeal and revisional Court does not substitute its own conclusion to the one arrived at by the courts below just because another view is possible unless the view taken by the courts below is perverse and contrary to law. In State v. Manimaran, reported as (2019) 13 SCC 670, the Supreme Court observed as under: "16. As held in State of Kerala v. Puttumana Illath Jathavedan Namboodiri [State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 2 SCC 452 : 1999 SCC (Cri) 275], ordinarily it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as by the Sessions Court in appeal. When the courts below recorded the concurrent findings of fact, in our view, the High Court was not right in interfering with the concurrent findings of fact arrived at by the courts below and the impugned order cannot be sustained." (emphasi....
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.... scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by re-appreciating the oral evidence. The High Court also committed further error in not examining several items of evidence relied upon by the Additional Sessions Judge, while confirming the conviction of the respondent. In this view of the matter, the impugned judgment of the High Court is wholly unsustainable in law and we, accordingly, set aside the same. The conviction and sentence of the respondent as passed by the Magistrate and affirmed by the Additional Sessions Judge in appeal is confirmed. This appeal is allowed. Bail bonds furnished stand cancelled. The respondent must surrender to serve the sentence." (emphasis supplied) 7. The acknowledgement receipt (EX.CW-1/A) dated 18.12.2010 states that the petitioner herein has taken a loan of Rs. 15,00,000/- and in lieu of the loan he is issuing cheque No.768427. The acknowledgment receipt is signed by the petitioner. The fact that there are no witnesses and the fact that it does not state as to....
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....y the petitioner is not sufficient to dispel the initial burden cast upon him and this does not explain as to why the second cheque for Rs. 8,00,000/- was given by the complainant to the petitioner herein. There is no material to show that the complainant gave any order to the petitioner for supplying computers and accessories. The mere ipse dixit of the petitioner alone will not rebut the presumption. The stand of the Courts below, in disbelieving the statement of the accused/petitioner herein, does not require any interference because it cannot be said that they are perverse. The second contention raised by the petitioner that only two cheques were given for an amount of Rs. 14,50,00/- does not correspond to the receipt of Rs. 15,00,000/- and the contention that there is no receipt for Rs. 50,000/- also does not take away the initial burden on the petitioner. Two cheques for Rs. 6,50,000/- and Rs. 8,00,000/- dated 15.12.2010 and 20.12.2010 respectively have been presented and money has been withdrawn. A receipt for Rs. 15,00,000/- has been given. In the absence of any explanation at all as to why the receipt for Rs. 15,00,000/- was given it cannot be said that the petitioner has ....
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....in the period of their validity and were returned unpaid for the reason of either the balance being insufficient or the account being closed. All the basic ingredients of Section 138 as also of Sections 118 and 139 are apparent on the face of the record. The trial court had also consciously taken note of these facts and had drawn the requisite presumption. Therefore, it is required to be presumed that the cheques in question were drawn for consideration and the holder of the cheques i.e. the complainant received the same in discharge of an existing debt. The onus, therefore, shifts on the appellant-accused to establish a probable defence so as to rebut such a presumption." ***** "17. On the aspects relating to preponderance of probabilities, the accused has to bring on record such facts and such circumstances which may lead the Court to conclude either that the consideration did not exist or that its non-existence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that the consideration did not exist. This Court has, time and again, emphasised that though there may not be sufficient negative evidence which could be bro....
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....the Act. 21. The accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial. Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, therefore, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant's rescue." (emphasis supplied) 10. The petitioner has not been able to rebut the presumption under Section 139 of the N.I. Act. He has not denied his signatures in the cheque. He does not deny the fact that the receipt dated 18.12.2010 was given by him which acknowledges a sum of Rs. 15,00,000/- taken as loan. As stated above, the fact that the receipt does not show as to from whom the loan of Rs. 15,00,000/- was taken is immaterial and inconsequential for the reason that it is the complainant who....