TaxTMI 
TaxTMI 
2021 (11) TMI 447
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....otice, the private complaint was filed by the de facto complainant. 3. After contest, the learned Judicial Magistrate, Fast Track Court, Dharmapuri, has held that the respondent/accused has committed the offence under Section 138 of the Negotiable Instruments Act and accordingly, by judgment dated 01.04.2014, convicted the respondent/accused under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs. 5,000/- and in default, to undergo simple imprisonment for one month. 4. Aggrieved over the said order of conviction and sentence passed by the learned Judicial Magistrate, Fast Track Court, Dharmapuri, the respondent/accused has preferred an appeal in C.A. No. 17 of 2014 before the learned Additional District and Sessions Judge, Dharmapuri. The learned Additional District and Sessions Judge, Dharmapuri, has allowed the said appeal by setting aside the order passed in S.T.C. No. 15 of 2012 by the learned Judicial Magistrate, Fast Track Court, Dharmapuri, and acquitted the respondent herein/accused. As against the said order of acquittal passed by the learned Additional District and Sessions Judge, Dhar....
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....unt of the accused from 01.01.2007 to 30.07.2011 was marked as Ex. D.1. D.W. 1 had admitted that the return of cheques will be entered in the Cheque Referred and Returned Register. 9. The summarization of argument of the learned counsel for the respondent/accused is that the accused had not borrowed any amount from the de facto complainant and there is no proof for presentation of the cheques in his Bank and there is a legally enforceable debt behind Exs. P.1 and P.2, case cheques. The return of the cheques-Exs. P.1 and P.2 is not entered in Ex. D.1-Bank Income and Expenditure Statement of the accused and Exs. P.1 and P.2 are not at all presented before the bank. 10. The accused has admitted that Exs. P.1 and P.2-cheques are belongs to his account. The issuance and ownership of Exs. P.1 and P.2 were admitted. According to the accused, the cheques were not issued to the private complainant and there is no legally enforceable debt behind Exs. P.1 and P.2. 11. Perused the records. Exs. P.1 and P.2, original cheques and Exs. P.3 and P.4-xerox copies of the return memos were filed on the ground that the original was misplaced in the office of the Advocate. In order to show that....
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....ard of "preponderance of probability", and not mere possibility. These principles were also affirmed in the case of Kumar Exports v. Sharma Carpets reported in [2009(1) MWN (Cr.) DCC 123 (SC): 2009 (1) CTC 552 (SC): 2009 (2) SCC 513], wherein, it was further held that a bare denial of passing of consideration would not aid the case of accused. The issuance of cheques and signature are admitted but the transaction is denied. The presumption under Sections 118 and 138 of the Negotiable Instruments Act operates and the accused is liable. 15. At the risk of repetition, however for the sake of clarity, on a perusal of Exs. P.1 and P.2-cheques, it is seen that the same belongs to the accused and as stated above, the signature in the cheque is admitted by the accused. Exs. P.3 and P.4 are the Xerox copies of the Bank Return Memo. It is the office copy of the Advocate and in order to show the presentation of the cheque for encashment and the return of the cheque, the private complainant has filed Ex. P.7-Cheque Referred and Returned Register, wherein, it is categorically stated that the above two cheque numbers were clearly mentioned and the same were returned due to insufficient funds.....
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....shment and the same were returned and penalty charges for cheque bouncing could not be found place in Ex. D.1 due to the fact that the account of the accused as reflected in Ex. D.1 is 'zero' account and the accused has not probabilise the suggestive case and hence, the finding rendered by the Lower Appellate Court is perverse, as the same is not reflection of Exs. P.7 and D.1. Accordingly, the contra finding rendered by the Lower Appellate Court is liable to be vacated and the finding as that of the trial Court is liable to be restored. Consequently, it is held that the accused has miserably failed to probabilise the suggestive case. Consequently, the conviction laid by the trial Court is held to be sustainable in law. So also the sentence. Accordingly, the conviction and sentence passed by the trial Court in S.T.C. 15 of 2012 are liable to be restored. 20. In the result, [i] this Criminal Revision Case is allowed. [ii] The order of acquittal passed by the learned Additional District and Sessions Judge, Dharmapuri, in Crl. A. No. 17 of 2014, dated 12.09.2015, is set aside. [iii] The conviction and sentence passed by the learned Judicial Magistrate (Fact Track C....