TaxTMI 
TaxTMI 
2003 (3) TMI 775
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....e above appeals are decided in this common judgment. 3. From the materials placed on record and upon hearing the learned counsel for the appellants and the respondent as well, it comes to be known that the amount borrowed by the accused from the complainant in the first of the above criminal appeals is Rs.6,44,275/= and the same in the second of the above criminal appeals is Rs.12,55,525/=; that the dates on which the post dated cheques issued were respectively 10.2.2001 and 7.2.2001 and they have been presented on the same date and since the same had been returned for `insufficiency of funds' on 9.2.2001, on receipt of the returned cheques on 20.2.2001 and with no reply given to the notice issued by the appellants, the complaints have been lodged on 21.3.2001. 4. On the part of the learned Senior Counsel appearing on behalf of the appellants, it would be submitted that on two grounds in both the above complaints, the accused has been acquitted; i) that there was no legally enforceable liability since the cheque was obtained by force with the help of the Police (para-8 of the judgment) and ii) that the complaint was barred by limitation (para-9 of the judgment) 5. On the....
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....e against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing reasonable possibility of the non-existence of the presumed fact. ii) 2002 SCC Cri 14 (K.N. BEENA V. MUNIYAPPAN AND ANOTHER ) wherein the Honourable Apex Court has held: " Under Section 118, unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee has also taken an identical view. iii) (SUGANTHI SURESH KUMAR VS. JAGADEESHAN ) (Para-12) " The total amount covered by the cheques involved i....
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....easons much against the legal presumption created. The further point on which stress was laid by the appellants is that the complaints have been presented on 21.3.2001 that the date of return of the cheques was on 9.2.2001; that the legal notices have been issued on 19.2.2001, which have been received on 20.2.2001 and the accused is permitted a time of fifteen days thereafter to settle the dues as per the legal notice, which shall be computed from the date of receipt of the notice by the accused on 20.2.2001. Hence, the fifteen days came to close on 10.3.2001 and the complaints having been filed on 21.3.2001, they were well within the time. 8. A perusal of the judgments of the trial court would reveal that the trial court has conducted a trial with due opportunities for both parties to exhaust their remedies during which three witnesses have been examined on the part of the appellants as P.Ws.1 to 3 and two witnesses have been examined on the part of the accused as D.Ws.1 and 2. Apart from these oral evidences let in, eight documents have also been marked on the part of the appellants as Exs.P1 to P8, Ex.P1 being the General Power of Attorney, Ex.P2 being the cheque, Ex.P3 being t....
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....d the non-payment of the amounts borne by the cheques by the accused and even the failure to give a reply rebutting the allegations of legal notice issued by the complainants to the accused, which are mandatorily to be complied with on the part of the accused. Regarding the cheques, the moment bounced cheques have been produced before the Court, presumption under Section 139 of the Negotiable Instruments Act legally operates and it is the duty of the Court to presume in the manner stipulated under Section 139 of the Negotiable Instruments Act and the only question that is to be posed is `whether such a strong case preliminarily put up on the part of the complainants have been shattered or disproved by the accused with proper and strong evidence?' 11. It is not the defence case of the accused that he did not borrow from the complainants much less the cheque borne amounts. The admitted case on the part of the accused is that he was terribly in debt and was absconding without honoring his commitments, as a result of which the complainants lodged criminal complaints before the Police against him. Without deciding this issue, the Magistrate has jumped to the second stage of having ....