TaxTMI 
TaxTMI 
2022 (7) TMI 421
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....Judgment and Order of conviction and sentence under Section 138 of The Negotiable Instruments Act, 1881 (for short, 'N.I. Act') of Respondent No.1 by the learned Metropolitan Magistrate, 30th Court, Kurla, Mumbai in C.C. No. 4825/SS/06 dated 3rd May 2007. 2. Heard Mr.Nayak, learned Advocate for Appellant, Mr.Dave, learned Advocate for Respondent No.1 and Mr.Hulke, learned A.P.P. for Respondent No.2-State. Perused entire record. 3. It is the case of Appellant that, he knew Respondent No.1 about six years prior to lodgment of the present complaint. That, Respondent No.1 was in need of money and therefore she approached Appellant and requested for grant of friendly loan of Rs.5,00,000/- (Rupees Five Lakh Only). Accordingly, Appellant advance....
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.... after his demise her in-laws harassed her and drove her out of house. Her in-laws also snatched important documents and belongings lying in her house. That, as her husband was seriously ill and subsequently expired on 1st August 2006, she could not reply notice issued by Appellant. She has also stated that, immediately after loss/misplacement of her signed cheques / cheque-book, she immediately lodged a complaint (Exh.D-3) with Sion Police Station on 23rd August 2005 and therefore there was no question of issuing any cheque to Appellant on 23rd March 2006. 5. The Trial Court after recording evidence and hearing the learned Advocates appearing for the respective parties was pleased to convict Respondent No.1 by its Judgment and Orde....
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....a chance to the drawer of the cheque to rectify his/her omission and also to protect an honest drawer. Silence on the part of Respondent No.1 in not replying to the statutory notice issued by Appellant is a strong circumstance, which reflects the falsity of the case of Respondent. He submitted that, an offence under Section 138 of N.I. Act is completed on failure by Respondent No.1 to make payment upon demand notice within prescribed period. In support of his contentions he relied on the following decisions. (i) Rakesh Cashew Industry Vs. Shri Damodar K. Ghadi, 2007 C.T.J. 847 (ii) P. Venugopal Vs. Madan P. Sarathi, (2009) 1 SCC 492 (iii) Chanchal Choudhary Vs. State of Maharashtra & Ors., 2010(1) All MR 181 (iv) Smt.Kiran Yugalkish....
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.... existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Somethin....
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.... to Respondent No.1, i.e. in cash or by way of bank transfer. There is no agreement in writing on record or any receipt executed by Respondent No.1 towards acceptance of the said friendly loan. It is to be noted here that, the Appellant in his evidence has admitted that, his annual income was Rs.2,00,000/- and he is a income tax payer. He has not produced any evidence on record even to remotely indicate that, he was having Rs.5,00,000/- as surplus amount to advance friendly loan to Respondent No.1. He has also not pleaded in the complaint nor deposed in his evidence that exactly on what date or in which month, Respondent No.1 requested him to advance friendly loan of Rs.5,00,000/-. Appellant in his cross-examination has admitted that, he di....
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....k for closure of her bank account by a separate letter. By a complaint dated 23rd August 2005 (Exh.D-3), Respondent No.1 had also informed to Senior Police Inspector, Sion Police Station regarding loss or theft of her signed cheques/cheque book from her shop. By a separate letter dated 6th December 2005 (Exh.D-4), Respondent No.1 had complained to Senior Police Inspector of Sion Police Station that, the Appellant and his wife were causing harassment to her and were demanding amount by blackmailing her. The said documents bear necessary seal of the concerned authorities. In view thereof, the presumptions as contemplated under Sections 118 & 139 of N.I. Act are not available to Appellant. A minute scrutiny of the evidence on record leads to d....