TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 757
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....facts of the case as emerge from the record are that the respondent (for short 'complainant') filed a complaint under Section 138 of the Negotiable Instruments Act (for short 'Act') in the Court of learned Judicial Magistrate 1st Class, Court No. 2, Paonta Sahib, District Sirmaur, H.P., averring therein that he is running a Karyana Shop in the name and Style of M/s. Roshan Lal & Sons, which is a proprietorship concern. He alleged that accused used to purchase grocery items, in wholesale, from him, for his shop at Shillai. On 15.11.2016, accused purchased certain goods i.e. sugar and Chickpea from him vide bill No. 13048 for a sum of Rs. 2,35,000/-. With a view to discharge his liability accused issued cheque bearing No. 508227, dated 16.11.2016, amounting to Rs. 2,35,000/- Ex. CW1/B of his bank account No. 07620210000083, but fact remains that aforesaid cheque on its presentation to the bank concerned was dishonoured on account of insufficient funds. Bank concerned returned the aforesaid cheque to the complainant vide memo dated 18.11.2016 Ex. CW1/C with the remarks "Funds insufficient". After receipt of aforesaid memo from the bank concerned, complainant served acc....
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....resent before the National Lok Adalat and as such, matter has again come back to this Court for disposal. Even today, during the proceedings of the case, this Court specifically enquired from learned counsel for the petitioner that whether petitioner-accused is ready and willing to give the entire payment of compensation awarded by court below, but since he refused to do so and expressed his intention to contest the case on merits, this Court has no option, but to decide the case on its own merit. 7. Having heard learned counsel representing the parties and perused the material available on record vis-a-vis reasoning assigned by learned courts below while passing impugned judgments of conviction and order of sentence, this Court finds it difficult to agree with Sh. P.P. Chauhan, learned counsel representing the petitioner that both the courts below have misread the evidence as well as law, as a consequence of which, adverse findings to the detriment of petitioner-accused has come to fore, rather this Court finds that both the Courts below have very meticulously dealt with each and every aspect of the matter and there is proper appreciation of evidence led on record by the respecti....
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....urpose accused was under obligation to raise probable defence either by leading positive evidence or by referring to the documents/evidence led on record by the complainant. However, in the instant case, accused miserably failed to raise probable defence and as such, Court below rightly held petitioner-accused guilty of having committed an offence punishable under Section 138 of the Act. 10. Reliance in this regard is placed upon judgment rendered by Hon'ble Apex Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106, wherein, it has been held as under: "18. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circu....
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....on informing me by the complainant I had informed to the accused. Thereafter, Rohitbhai had given other seven (7) cheques to the complainant in my presence and the deed was executed on Rs. 100/- stamp paper in there is my signature." 19.3 This witness was cross-examined on various aspects as regards the particulars in the writing on the stamp paper and the date and time of the transactions. In regard to the defence as put in the cross-examination, the witness stated as under: "I have got shop in National Plaza but in rain no water logging has taken place. It is not true that there had been no financial dealings between me and the accused today. It is not true that I had given rupees ten lacs to the accused Rohitbhai on temporary basis. It is not true that for the amount given to the accused, I had taken seven blank duly cheques also blank stamp paper without signature. It is not true that there was quarrel between me and the accused in the matter of payment of interest. It is not true that even after the payment of Rs. ten lacs and the huge amount of the interest in the matter of interest quarrel was made. It is not true that due to the reason of quarrel with the accused, in th....
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....8, (4) 01/08/08 (5) 01/10/08 (6) 01/11/08 (7) 01/12/08 the account of which is 40007. Earliest these cheques were given but due to rainy water logging the said cheques having been washed out (7) cheques have again been given which is acceptable to me." 19.6 The fact of the matter remains that the appellant could not deny his signatures on the said writing but attempted to suggest that his signatures were available on the blank stamp paper with Shri Jagdishbhai. This suggestion is too remote and too uncertain to be accepted. No cogent reason is available for the appellant signing a blank stamp paper. It is also indisputable that the cheques as mentioned therein with all the relevant particulars like cheque numbers, name of Bank and account number are of the same cheques which form the subject matter of these complaint cases. The said document bears the date 21.03.2007 and the cheques were post-dated, starting from 01.04.2008 and ending at 01.12.2008. There appears absolutely no reason to discard this writing from consideration. 19.7 One of the factors highlighted on behalf of the appellant is that the said writing does not bear the signature of the complainant but and instead, i....
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....elf is not maintainable for the reason that cheque in question Ex. CW1/B was issued in favour of M/s. Roshan Lal & Sons, whereas complaint has been filed by Anil Bansal, proprietor of M/s. Roshan Lal & Sons. He further argued that bill Ex. CW1/A was issued by M/s. Roshan Lal & Sons qua the purchase, if any, of sugar and Chickpea by the accused, whereas complaint has been filed by some Anil Kumar Bansal and as such, same being not maintainable ought to have been dismissed by the court below. In support of his aforesaid contention, learned counsel for the petitioner placed heavy reliance upon the judgment rendered by Hon'ble Apex Court in case tilted Milind Shripad Chandurkar versus Kalim M. Khan and another (2011) 4 Supreme Court Cases 275, wherein Hon'ble Apex Court has held that once complainant fails to establish that he was proprietor of the firm concerned, he had no locus standi to file complaint under Section 138 of the Act. Learned counsel representing the petitioner also placed reliance upon judgment rendered by Co-ordinate Bench of this Court in case titled S.P. Saklani versus Shri Ravinder Singh Thakur, 2012 STPL 9872 H.P., wherein it has been held that section 142....
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....ime, he shall produce the same. He nowhere admitted that M/s. Daya Ram is not proprietorship concerned and he is not proprietor of the same, rather he specifically claimed that firm is registered and he can produce the documents with regard to proprietorship, if he is provided time. 15. Leaving everything aside, no objection with regard to proprietorship of the complainant ever came to be raised during the trial by the accused. True, it is that as per Section 142 of the Act complaint under Section 138 of the Act is to be made by the payee or by the holder in due course. In the case at hand, cheque came to be issued in favour of the M/s. Roshan Lal & Sons, which is proprietorship concerned as has been categorically stated by the complainant in his complaint. Since Anil Bansal is the sole proprietor of the firm, he was well within its right to file complaint under Section 138 of the Act for realization of his dues. 16. The Hon'ble Apex Court in M/s. Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the pro....
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....if the same is not rebutted with regard to the materials submitted by the complainant. 25. It is no doubt true that the dishonour of cheques in order to qualify for prosecution under Section 138 of the NI Act precedes a statutory notice where the drawer is called upon by allowing him to avail the opportunity to arrange the payment of the amount covered by the cheque and it is only when the drawer despite the receipt of such a notice and despite the opportunity to make the payment within the time stipulated under the statute does not pay the amount, that the said default would be considered a dishonour constituting an offence, hence punishable. But even in such cases, the question whether or not there was lawfully recoverable debt or liability for discharge whereof the cheque was issued, would be a matter that the trial court will have to examine having regard to the evidence adduced before it keeping in view the statutory presumption that unless rebutted, the cheque is presumed to have been issued for a valid consideration. In view of this the responsibility of the trial judge while issuing summons to conduct the trial in matters where there has been instruction to stop payment d....