TaxTMI 
TaxTMI 
2018 (8) TMI 2064
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....ed by the trial Court on the basis of common evidence adduced in respect thereof and there are three similar impugned judgments and orders only because there were three cheques of different amounts involved, these appeals are being disposed of by this common judgment. 3. The case of the appellant herein, in brief, was that she was a retired house wife, who had returned from England and settled down in Nagpur. She was interested in investing money in properties and, therefore, she came in touch with the respondent through a property agent. It was claimed that the respondent was an employee of Graceland Realities Ltd. It was claimed that investment was made in three properties through the respondent and that in the process the appellant de....
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....us operandi was adopted by her. In this reply notice, the respondent specifically asked the appellant not to deposit the remaining two cheques that had been issued by the respondent. 6. Despite the said reply notice wherein the appellant had been called upon not to deposit remaining two cheques, the appellant went ahead to deposit the cheques, which were dishonoured. As a consequence, the appellant filed three complaints before the trial Court alleging that the respondent had committed offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The appellant placed on record the aforesaid disputed cheques, as also a receipt dated 26.12.2013 (Exh. 31), wherein the respondent had purportedly acknowledged the said loan and....
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....Court could not have acquitted the respondent. It was submitted that there was sufficient material on record to show that the cheques were issued for discharge of legal debt and that the respondent had not rebutted the presumption even on the touchstone of preponderance of probabilities. On this basis, it was claimed that the appeals deserved to be allowed. 9. On the other hand, Mr. P.A. Teni, learned counsel appearing on behalf of the respondent, submitted that a perusal of the cross-examination of the appellant demonstrated that she had failed to prove even the foundational fact of having advanced loan amount to the respondent. It was pointed out that when the reply notice was issued by the respondent specifically giving his version of....
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....ondent on different dates in the years 2012 and 2013. The contention raised on behalf of the appellant that in the absence of denial of signatures on the said cheques, the presumption operated in full force in favour of the appellant, needs to be examined on the basis of oral and documentary evidence on record pertaining to the fact of such loan having been advanced by the appellant. 11. In order to appreciate the entries in the pass-book at Exh. 30, the same will have to be read with the evidence of the appellant and statements made by her in cross-examination. The appellant had stated in cross-examination that she advanced amounts to the respondent in the following manner:- Rs. 1,00,000/- by cheque on 28.02.2013 Rs. 0....
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....nced Rs. 35,000/- on 10.11.2012 by cheque in favour of the respondent, there is no evidence on record because the pass-book at Exh. 30 pertains to entries starting from the date 28.02.2013. Thus, the claims made by the appellant in her oral evidence pertaining to advancing of aforesaid amounts to the respondent are not supported by documentary evidence on record. Even otherwise, the said amounts stated in the oral evidence of the appellant, add up to Rs. 2,01,000/- while the cheques in question, purportedly issued to repay the loan are only for an amount of Rs. 2,00,000/-. The difference in said two amounts is not satisfactorily accounted for by the appellant. In this situation, the proof of foundational facts pertaining to advancing of loa....
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....by the respondent, it was incumbent upon the appellant to have proved signature of the respondent on the said receipt. No effort was taken by the appellant to do so. It was claimed that when signatures on the cheques were not denied and an assertion had been made by the appellant that the receipt at Exh. 31 bore the signature of the respondent, no further proof was required. But, the said stand taken on behalf of the appellant is unsustainable because it was she who had claimed that the receipt at Exh. 31 was indeed signed by the respondent, which was denied by him. Therefore, it was for the appellant to have taken appropriate steps to prove that the receipt was indeed signed and executed by the respondent. As no such steps were taken, the ....