TaxTMI 
TaxTMI 
2022 (1) TMI 191
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..... The respondent/complainant filed S.T.CNo.414 of 2008 before the learned Judicial Magistrate No.III, Erode for offence under Section 138 of the Negotiable Instruments Act. After trial, the trial Magistrate has laid the conviction and sentence as stated supra. On appeal in Crl.A.No.37/2014 first additional sessions Judge dismissed the appeal and hence the revision. 3. Heard the learned counsel for the petitioner and the respondents. 4. The learned counsel for the revision petitioner would contend that A3 is the revision petitioner herein. The sum and substance of the contention of the revision petitioner is that the cheque was not issued to the private complainant herein and it was issued to one M/s.Yaham Process, partnership firm rep....
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....l transaction comes about only Rs. 8 lakh. Further most of the accounts is under minus account namely, Over Draft facility and hence, the private complainant has no means to pay such amount. Hence, between the private complainant and the accused, there is no legally enforceable debt. 7. The case of the private complainant in brief is that the accused has received loan transaction of Rs. 4 lakhs given to A2 and A3 on behalf of A1 firm. In turn A3 signed and issued Ex.P1 cheque to the complainant in the presence of A2 and on behalf of A1 firm. So is the evidence as P.W.1. From records revealed that Ex.P1 cheque was dishonoured. Ex.P2 Memo with an endorsement 'accounts closed'. Legal notice was issued. The complainant issued Ex.P8 n....
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....heque and signature in the cheque are admitted by A3, they are entitled for presumption under Section 139 of the Negotiable Instruments Act. 11. Now the point for consideration is whether the revision petitioner/accused discharged the burden of proof with positive evidence by probablising the suggestive case. 12. As stated supra, A3 examined as D.W.3 and on behalf of the defense accused on Court summons, the Manager of Karur Vysa Bank (complainant bank) was examined as D.W.1 and marked Ex.D1 and D2 accounts opening form and the accounts statement for the account of the accused for the relevant period. D.W.2 is the Inspector of Police D.W.3 is the third accused. Though D.W.3 stated that Ex.P1 cheque, cheque was issued to some other per....
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....it is clear that, absolutely the respondent/complainant is not having sufficient financial sources for lending such alleged amount, even, he could not to have meet out his day to day affairs of his family through the sources mentioned above. 16. From the copy of the records, it was furnished by the accused, the accused taken the defense that on and from the year 2005 MICR cheque only was issued and presented and Ex.P1 is a non MICR. 17 (a). On perusal of Ex.P1 marked through D.W.1, I find that the complainant has no means to advance such a huge amount of Rs. 4 lakhs and it is only is oral evidence. However, Ex.D1 statement of bank accounts shows that it never exceeded Rs. 10,000/- the account of company at relevant point of time and t....
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....demonstrated before the Court that the private complainant does not possess sufficient source of income to lend to Rs. 4 lakhs at relevant point of time. In the decision reported in 2014 Madras Crl.DCC Page No.24 SC while lending, the source of advancing money is a relevant point period has held that, the same amounts to probablizing the defense case. 19. It remains to be stated that under Ex.P3 legal notice, the private complainant has alleged viz A2 has borrowed the amount on behalf of the A1 firm on 24.05.2008 for the business of A1. However in the complaint and the evidence as P.W.1, he has included by exoneration that A3 has issued cheque for the amount received by A2 and A1. In other words, I find there is a marked material contrad....