TaxTMI 
TaxTMI 
2022 (6) TMI 487
X X X X Extracts X X X X
X X X X Extracts X X X X
....plainant demanded to pay the money, the accused issued the subject matter of the cheque and the same was dishonoured and notice was issued and no reply was given and hence the complaint was filed and the Trial Court took the cognizance and thereafter the complainant examined himself as P.W. 1 and got marked the documents at Exs. P.1 to 8(a). On the other hand, the accused also examined himself as D.W. 1 and examined another witness as D.W. 2 and got marked the documents at Exs. D.1 to 3. The Trial Court after considering both oral and documentary evidence placed on record, convicted the petitioner and directed to pay an amount of Rs. 8,25,000/- as fine. In default of payment of fine to undergo simple imprisonment for a period of six months. Being aggrieved by the judgment of conviction and sentence, the petitioner filed Crl.A. No. 62/2012. The Appellate Court on re-appreciation of both oral and documentary evidence placed on record, dismissed the appeal. Hence, the present revision petition is filed before this Court. 3. The main contention of the learned counsel for the petitioner before this Court is that both the Courts have committed an error in not appreciating the defence se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndard of preponderance of probabilities. The learned counsel also brought to the notice of this Court paragraph No. 12 regarding presumption and the same is rebuttable presumption. The learned counsel also brought to the notice of this Court paragraph No. 19 of the judgment. 8. The learned counsel also relied upon the judgment of this Court in the case of S. TIMMAPPA v. L.S. PRAKASH reported in 2015 (5) KCCR 3397, wherein discussed with regard to the presumption has been rebutted. The learned counsel also relied upon the judgment of this Court in the case of SMT. THREJA v. SMT. JAYALAXMI reported in 2016 (5) KCCR 1341, wherein discussed with regard to Sections 138, 139 and 118 of the Negotiable Instruments Act. The Courts below attaching much importance to presumption under Sections 118 and 139 without looking into categorical admission elicited from the complainant. 9. Per contra, the learned counsel for the respondent in his argument would vehemently contend that the Trial Court in paragraph Nos. 12 to 15 discussed in detail and given the reasoning with regard to the contentions raised by the petitioner herein and detailed order has been passed. The learned counsel would conten....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... August. In the cross-examination, it is elicited that there were 10 to 12 transactions between them. With regard to obtaining of the document is concerned, he categorically says that prior to this transaction also, he had paid 2-3 lakhs and by that time also he has not collected any documents. It is also elicited that he gave the money in his house and when the question was put to him whether there was any difficulty to get any document from him, the witness categorically says that there was no such necessity. It is suggested that the accused was getting salary and there was no need to get the loan and the witness categorically says that he was doing other transactions in the name of his wife and hence he was in need of money. No doubt, in the cross-examination, it is elicited that Devraj Urs is his relative, but suggestion was made that the cheque which was given to Devraj Urs was misused by filing the present case and the same was denied. It is also suggested that Devraj Urs owed money to him and hence he had collected cheque from him and filed the case and the same was denied. 12. On the contrary, the petitioner was also examined before the Trial Court as D.W. 1 and in his chi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....evraj Urs had taken away several cheques belonging to him and not stated anything about he lost the cheque. But in the cross-examination he claims that the cheques have been lost and contra question put in the cross-examination and admittedly he has not given any complaint and also not produced any documents for having given the complaint, but relies upon the documents Exs. D.1 to 3. Ex. D.1 is the provident fund statement and Ex. D.2 is the endorsement issued by the police for having given the complaint by the wife of the accused on 07.07.2007 and Ex. D.3 is the affidavit of the wife and what made to sworn to an affidavit in terms of Ex. D.3, nothing is explained. When such being the material available on record, the very first contention that no payment dates are given, cannot be accepted and specific months are mentioned for having advanced the loan amount in the complaint as well as in his evidence. 15. No doubt, in the income tax declaration, P.W. 1 has not declared for having paid the money. But in the cross-examination, P.W. 1 admits that he has not produced any documents to show that he is paying income tax. But he admits that he is an income tax assessee. But non-filing o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... has not given any complaint and relies upon the endorsement given by the police with regard to the complaint given by his wife. D.W. 2 categorically admitted that the petitioner has not given any complaint and there was no any difficulty for him to give the complaint when the cheque belonging to the petitioner was lost. Hence, I do not find any force in the contention of the learned counsel for the petitioner to accept the argument that the petitioner has probabalised his case. 17. Regarding loss of cheque and also rebuttal of the presumption is concerned, the Apex Court in the judgment in the case UTTAM RAM v. DEVINDER SINGH HUDAN AND ANOTHER reported in (2019) 10 SCC 287, held that inconsistencies regarding the amount due, not made out, as amount due stood crystallized in written document against which cheque in question was issued. The defence that the cheque book was lost/stolen or that cheque was misused was completely without basis. 18. The Apex Court in the judgment in the case of BIR SINGH v. MUKESH KUMAR reported in (2019) 4 SCC 197 held that presumption is rebuttable and onus lies on drawer to rebut it by adducing cogent evidence to the contrary. 19. The Apex Court in....