TaxTMI 
TaxTMI 
2015 (10) TMI 2835
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....ent would return the amount of Rs. 1.50 lacs on 23.04.2009. The agreement further indicated that the respondent had issued a promissory note admitting his liability and obligation to pay the aforesaid amount (Rs. 1.50 lacs) to the petitioner on 23.04.2009. An affidavit was also sworn by the respondent which indicated that the respondent has given a cheque of Rs. 1.50 lacs bearing cheque no.489019 payable on 23.04.2009. The cheque was of Syndicate Bank, Dev Nagar, Delhi. The promissory note has been exhibited as Ex.CW1/B and the affidavit referred above is exhibited as Ex.CW1/C. The cheque of Rs. 1.50 lacs drawn by the respondent was dishonoured for insufficiency of funds. As a result thereof, a notice was issued to the respondent in which there was direction to pay the amount in question. Neither the amount was paid nor the notice was replied. Per force, a complaint had to be filed under Section 138 of the Negotiable Instruments Act. 3. The Trial Court proceeded with the complaint case in a summary manner and after summoning the respondent, his plea was recorded under Section 263(g) of the Code of Criminal Procedure. The respondent though admitted the fact that he had signed the....
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....ay back the loan but the respondent took some time from him and requested for not presenting the post dated cheques given by him in the bank. The payment of money was delayed on different pretexts. Finally in the month of May 2009, the post-dated cheques given by the respondent was presented by the petitioner before Punjab National Bank, Dev Nagar, New Delhi, and the same was dishonoured for insufficiency of funds. The cheque has been exhibited as Ex.CW1/D whereas the cheque return memo dated 08.05.2009 is exhibited as Ex.CW1/E. 5. It has been stated by the petitioner that a further request was made by the respondent for presentation of the cheque after first week of April 2009. On the second presentation also, the cheque was dishonoured for the same reason i.e. insufficiency of funds. The cheque return memo dated 10.07.2009 is exhibited as Ex.CW1/F. 6. Thereafter, notice was issued which went unreplied and therefore, the complaint in question was lodged by him. 7. The Trial Court took note of the fact that respondent had initially taken a defence that the loan amount was of Rs. 30,000/- but later the stand of the respondent was changed and it was stated by him that loan w....
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....actual transfer of money. The printed proforma which contained the signature and the thumb print of the respondent were filled up with two different inks. 12. The affidavit, Ex.CW1/C, has also been executed on 16.09.2008. Thus, in the absence of any proof of the amount of loan to have been paid, the promissory note and the agreement referred above lost all its efficacy and force. A promise for no consideration is a void agreement. (See illustration A, Section 25 of the Indian Contract Act). 13. The petitioner is admittedly an Income Tax Assessee but he has not shown the advance of loan to the respondent in his Income Tax Return (for short 'ITR'). The petitioner could not produce his ITR for the year 2008-2009 and no mention of the loan to the respondent in ITR for the year 2009-2010, permits of drawing an adverse inference against the petitioner. 14. In order to appreciate the rival contentions of the parties, it is necessary to examine the Sections 118(a), 138 and 139 of the NI Act. Section 118 - Presumptions as to negotiable instruments Until the contrary is proved, the following presumptions shall be made:- - (a) of consideration--that....
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....nts are required to be satisfied, i.e., I. That there should be a legally enforceable debt; II. That the cheque should have been drawn from the account of the bank for discharge in whole or in part of any debt or other liability which pre-supposes a legally enforceable debt; and III. That the cheques so issued is dishonoured for insufficiency of funds. 16. Under Section 139 of NI Act, unless the contrary is proved, the holder of the cheque shall be presumed to have received the cheque in discharge of any debt or liability. 17. Sub-clause (a) of Section 118 of the NI Act, inter-alia, provides that unless the contrary is proved, the drawn up negotiable instrument, if accepted, has to be presumed to be for consideration. 18. In Goa Plast (P) Ltd. vs. Chico Ursula D'souza & Anr., (2003) 3 SCC 232, the Supreme Court has held that that the provisions of section 138 to 142 of the NI Act, is for the purpose of giving credibility to negotiable instruments in business transactions. In view of section 139 of the NI Act, it had to be presumed that a cheque is always issued in discharge of any debt or other liability. The presumption could be rebutted by ....
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.... the presumption under Section 139 of the NI Act, namely, the existence of a legally enforceable debt by establishing that no loan was advanced to him even though there was an agreement and a corresponding promissory note and an affidavit. The aforesaid loan was not shown in the ITR return of the petitioner. An adverse inference could be drawn against the petitioner on that account. The loan amount also appears to be doubtful. 23. The petitioner could not, on the other hand, satisfy the requirement of law in discharging onus in the second instance regarding the plea of the respondent of no liability or non-existence of a legally enforceable debt. The advance of loan of such amount is required to be disclosed under the ITR return (referred to Section 269SS of the Income Tax Rules and Section 271D of the Income Tax Act.) 24. The respondent had sent a legal notice to the petitioner on 14.07.2009, regarding return of the blank signed cheques which were admittedly received by the petitioner. The petitioner has stated that he replied the notice on 28.07.2009. In the notice sent to the petitioner by the respondent on 14.07.2009, there is a clear and categorical plea that he had take....
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....nt for a term not exceeding one year. 29. After having said so, what has put this Court in dilemma is whether to entertain the aforesaid revision petition against the judgment and order of acquittal of the respondent. The present Criminal Revision, though has come to be entertained by this Court since 2012 but there is a lurking doubt about the maintainability of the present revision petition in view of the provisions of Sections 378(4) and 401(4) of the Cr.P.C. 30. Section 378 of the Cr.P.C. provides for appeals in case of acquittal. "Section 378. Appeal in case of acquittal. (1) Save as otherwise provided in sub- section (2) and subject to the provisions of sub- sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court 2 or an order of acquittal passed by the Court of Session in revision.] (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Ac....
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....n in sub-section (4) of Sec 378 of Cr. P.C. that an appeal by the complainant could be made against an order of acquittal passed by the Trial Court only and not against an order of acquittal passed by the Appellate Court. In sub-section (1) and (2) of Section 378 of the Cr. PC, the State Government and the Central Government, as the case may be, have been given the discretion to direct the public prosecutor concerned to prefer an appeal as against an original or appellate order of acquittal passed by any Court other than the High Court. Thus, the aforesaid sub- sections indicate the scheme of the code and therefore sub-Section (4) of Section 378 of the Cr.P.C. in which also there is a use of phrase "such an order of acquittal", is covered by the same scheme. This permits the complaint to prefer straight away an appeal to the High Court. The aforesaid provision i.e. Section 378 of the Cr.P.C. has direct proximity to Section 378(1) and (2). Under Section 378(1) an appeal would lie only to the High Court not only from an original order of acquittal but also from the Appellate order of acquittal passed by the Courts below. 33. I am, therefore, of the opinion that Section 378(4) of t....