TaxTMI 
TaxTMI 
2021 (12) TMI 893
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....sation, to further undergo simple imprisonment for one month. 2. Precisely, the facts of the case, as emerge from the record, are that, respondent/complainant instituted a complaint under S.138 of the Act in the court of learned Chief Judicial Magistrate, Lahul and Spiti at Kullu alleging therein that since the accused was well known to him and they were having friendly relations, he advanced a sum of Rs. 1,50,000/- to the accused for construction of house who further with a view discharge his legally enforceable liability, issued a cheque bearing No. 745482 dated 26.10.2012 amounting to Rs. 1,50,000/- drawn at Andhra Bank Kullu branch. However, the fact remains that on presentation of cheque Exhibit CB, was dishonoured on account of insufficient funds vide memo Exhibit CC. Complainant issued a legal notice Exhibit CD calling upon the accused to make good the payment within stipulated time but since he failed to do the same, complainant had no option but to institute complaint under S.138 of the Act. Learned trial Court, on the basis of evidence collected on record, held the accused guilty of having committed offence punishable under S.138 of the Act and convicted and sentenced hi....
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....e and the same was returned on 27.11.2012 by the Department of Posts. In his cross-examination, this witness stated that he is a horticulturist and a contractor and he is in this business for the last 30-45 years. He deposed that he is a matriculate and prepares documents of transaction. He admitted that he did not file income tax return. 6. Mr. Prem P. Chauhan, learned counsel for the petitioner while referring to aforesaid cross-examination of the complainant, vehemently argued that once complainant himself admitted that he used to prepare documents of transactions, it is not understood why he did not prepare any document with regard to transaction, if any, inter se him and the accused. 7. This court is not impressed with the aforesaid submission of Mr. Prem P. Chauhan, Advocate, for the reason that once the accused has not denied issuance of cheque as well as his signatures thereupon, presumption is available to complainant under Ss.118 and 139 of the Act that such cheque was issued in discharge of lawful liability. 8. No doubt, presumption under Ss.118 and 139 of the Act is rebuttable but for that purpose, accused was under obligation to raise probable defence, which he admi....
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....inant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the accused-appellant. The aspect relevant for consideration had been as to whether the accused-appellant has brought on record such facts/material/circumstances which could be of a reasonably probable defence. 19. In order to discharge his burden, the accused put forward the defence that in fact, he had had the monetary transaction with the said Shri Jagdishbhai and not with the complainant. In view of such a plea of the accused-appellant, the question for consideration is as to whether the accused-appellant has shown a reasonable probability of existence of any transaction with Shri Jagdishbhai? In this regard, significant it is to notice that apart from making certain suggestions in the cross-examination, the accused- appellant has not adduced any documentary evidence to satisfy even primarily that there had been some monetary transaction of himself with Shri Jagdishbhai. Of course, one of the allegations of the appellant is that the said stamp paper was given to Shri Jagdishbhai and another factor relied upon is that Shri Jagdishbhai had signed on the stamp pap....
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....ough Shashimohan Goyanka. It is not true that no financial dealings have taken place between the complainant and the accused. therefore I also the complainant both at the time of evidence the accused at what place, on what date at what time, the amount taken has not been able to make clearly. (sic) It is not true that the blank stamp paper duly signed were lying in which obstinate writing has been made therefore the same has not been registered through sub registrar. It is not true that the dealings have been made between me and accused therefore there is my signature and the signature of the accused and the complainant has not signed. It is not true that any types of dealings between the accused and the complainant having not been done in my presence therefore in my statement no clarification has been given. It is not true that the accused in my presence as mentioned in the complaint any cheque has not been given. It is not true that I in collusion with the complainant to usurp the false amount the false complaint has been filed through Shashimohan Goyanka. It is not true that in support of the complaint of Shashimohan Goyanka is giving false statement." 19.4 The statement of Sh....
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....the said writing does not bear the signatures of the complainant. The said writing is not in the nature of any bi partite agreement to be signed by the parties thereto. It had been a writing in the nature of acknowledgement by the accused-appellant about existence of a debt; about his liability to repay the same to the complainant; about his having issued seven post-dated cheques; about the particulars of such cheques; and about the fact that the cheques given earlier had washed away in the rain water logging. Obviously, this writing, to be worth its evidentially value, had to bear the signatures of the accused, which it does. It is not unusual to have a witness to such a document so as to add to its authenticity; and, in the given status and relationship of the parties, Shri Jagdishbhai would have been the best witness for the purpose. His signatures on this document, therefore, occur as being the witness thereto. This document cannot be ruled out of consideration and existing this writing, the preponderance of probabilities lean heavily against the accused-appellant. 10. The Hon'ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat, 2013(1) RCR(Criminal), has categorically hel....
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....legally enforceable debt or liability, obviously statutory presumption under Section 139 of the NI Act regarding commission of the offence comes into play 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 ....
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....vidence available on record, this Court sees no reason to interfere with the well reasoned judgments passed by the courts below, which otherwise appear to be based upon the correct appreciation of evidence and as such, same need to be upheld. Moreover, this Court has a very limited jurisdiction under Section 397 of the Cr.PC, to re-appreciate the evidence, especially, in view of the concurrent findings of fact and law recorded by the courts below. In this regard, reliance is placed upon the judgment passed by Hon'ble Apex Court in case "State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri" (1999) 2 Supreme Court Cases 452, wherein it has been held as under:- "In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore,....