TaxTMI 
TaxTMI 
2017 (6) TMI 1375
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....t presented the cheque for encashment into his bank on 27.12.2004. The cheque was returned on the same day for the reason 'Exceed Arrangement' and the same was intimated to the complainant on 29.12.2004. The Bankder's Return Memo and Debit advice are Ex. R2 and R3 respectively. Thereafter, the complainant issued legal notice Ex. R4 on 15.1.2005 to the accused and the same was received by the accused on 22.1.2005 as evident from Ex. R6 Acknowledgment Card. After the receipt of notice, since the accused neither paid the amount nor sent any reply, the complainant filed the complaint against the accused under Section 138 of Negotiable Instruments Act. 2. On the complainant side, the complaint was examined as R.W. 1 and 5 exhibits were marked. No witness was examined on the accused side and no exhibit marked. After analysing the oral and documentary evidence of R.W. 1 and Ex. P.1 to R6 and the arguments of both the learned counsel, the learned Judicial Magistrate, Tiruchengode, convicted the accused u/s. 138 of Negotiable Instruments Act and sentenced him to undergo six months simple imprisonment and to pay a fine of Rs. 3,000/- in default to undergo simple imprisonment for....
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....e trial court has properly analysed the entire evidence and materials and rightly awarded the punishment. He further argued that the appellate court has also considered the same and confirmed the conviction. 5. In support of their respective arguments the learned counsel for the revision petitioner/complainant relied upon a citation reported in Bharat Barrel and Drum Manufacturing Company v. Amin Chand Payrelal AIR 1999 SC 1008 : (1999) 3 SCC 35 : LNIND 1999 SC 171 and the learned counsel for the respondent/accused cited a decision of the Honourable Supreme Court reported in Rangappa v. Sri Mohan 2010 (4) CTC 1188 : AIR 2010 SC 1898 : (2010) 11 SCC 441 : LNIND 2010 SC 472 : (2010) 3 MLJ (Crl) 547. 6. In the light of the above submissions the points that arise for consideration in this revision petition is as to 1. whether the revision petitioner has committed any offence punishable under Section 138 of Negotiable Instruments Act and 2. Whether the revision petitioner brought out any material to dislodge the legal position attached to the cheque. 7. It is the case of the complainant that the accused borrowed a sum of Rs. 10 lakhs on 19.11.2004 for chit fund business and issue....
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.... complaint it is specifically stated that the accused borrowed the amount for his chit fund business. The specific pleadings in the complaint is completely different from the cross examination. When the entire evidence of P.W. 1 is carefully perused, it is admitted that she has filed an application seeking permission to represent her son on her behalf as General Power of Attorney. It transpires from the evidence of P.W. 1 that in the said application it is stated that the accused has issued cheque for the cotton thread business transaction with her husband and son. Further, she has also admitted in the cross examination she has not doing any business on her own. She has not paid income tax on her own. 10. It is also admitted in her cross examination that the amount of Rs. 10 lakhs was given as hand loan without any interest. According to P.W. 1 the accused is neither her relative nor the belongs to her village. Without any interest, giving hand loan of Rs. 10 lakhs is highly unnatural and against the normal human conduct. It further curious to note that the complainant has also filed Ex. P.6 Bank statement for the period from 01/01/1990 to 27/08/2007 which would show that she has ....
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....roved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would dis-entitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as existence of negative evidence is neither possible nor contemplated and even if led is to be seen with a doubt. The bare den....