TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 1390
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....titioner was the accused therein. Parties shall hereinafter be referred to as per their status in the said Criminal case. 6. The complainant had filed the said case against the accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act, for short). Case of the complainant was as follows:- The accused had borrowed Rs. 22,500/- from the complainant for business purpose and towards repayment of the same, he had issued a cheque bearing no. 515354 dated 06/04/2007 for the said amount of Rs. 22,500/- drawn on "Development Credit Bank Ltd.", Panaji Branch. The complainant presented the said cheque to the Mapusa Urban Co-operative Bank of Goa Ltd., Sankhali Branch. By letter dated 31/07/2007, accompanied with a memorandum of Development Credit Bank Ltd., Panaji Branch dated 30/07/2007, the complainant was informed that the said cheque was dishonoured for reason "funds insufficient". The complainant, thereafter, telephonically informed the accused that the cheque was dishonoured, but the accused did not listen nor he did make any efforts to pay to the complainant the said amount. Thereafter, the complainant, through her Advocate, issued a legal notic....
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....s. Sangram Narsing Panchal, [2012(1) Bom. C.R. (Cri.) 53] (iii) Vijay Power Generators Ltd. Vs. Sumit Seth, [2014 ALL MR (Cri) Journal 305] (iv) Avon Organics Ltd. Vs. Poineer Products Limited and Ors. [2004(1)Crimes] 567 (v) "Bindu Vs. Sreekantan Nair" [Air 2007 (DOC) 195 (KER)]. 10. On the other hand, Mr. Bhobe, learned Counsel for the respondent no. 1 submitted that admittedly, the cheque has been executed by the accused. He submitted that there is nothing in the cross-examination to prove that the details in the cheque were not filled by the accused. He further submitted that the complainant had sent a statutory notice to the accused which was received by the accused, but no reply was sent by him. He further submitted that the accused did not produce any evidence at all to rebut the presumption arising out of Sections 118 an 139 of the N.I. Act. Learned Counsel further submitted that there are concurrent findings of the Lower Courts and no jurisdictional error has been shown in the said judgment and order. No interference with the said judgment is called for. He urged that the revision application deserves to be dismissed and, therefore, the same be dismissed. 11. I hav....
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....Bhaskaran Vs. Sankaram Balan", (AIR 1999 S.C. 3762), the Hon'ble Supreme Court has held that once the signature on the cheque is admitted to be that of the accused, the presumption envisaged in Section 118 of the N.I. Act, can legally be inferred that the cheque was drawn for consideration on the date, which the cheque bears. 16. In the case of "K.N. Beena Vs. Muniyappan and another ", [(2001) 8 SCC 458], the Hon'ble Supreme Court has held that in view of the provisions contained in Sections 118 and 139 of the N.I. Act, the Court has to presume that the cheque has been issued for discharging a debt or liability and said presumption could be rebutted by the accused by proving the contrary. In paragraph 7, the Apex Court has observed thus:- "In this case admittedly the 1st Respondent has led no evidence except some formal evidence. The High Court appears to have proceeded on the basis that the denials/averments in his reply dated 21st May, 1993 were sufficient to shift the burden of proof onto the Appellant/Complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The 1st Respondent had to prove in the trial, by leadin....
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....he amount was given to the accused in cash and there was no evidence to show whether the complainant had sufficient source of income to give Rs. 5,00,000/-. Besides the disputed cheque, there was no other evidence to show that she had advanced the said amount of Rs. 5,00,000/- in cash as loan. Admittedly, the disputed cheque was a blank cheque, wherein the amount was not mentioned. The learned Single Judge held that it could not be believed that the complainant had given the amount of Rs. 5,80,000/- which she had received by way of chit funds. Even the complainant had failed to establish the date of extending the loan. Mainly, relying upon the judgment of this Court in the case of "Sanjay Mishra Vs. K. K.", reported in 2009 Cri. L. J. 3777, since the amount advanced by the complainant was unaccounted for and not disclosed in the Income Tax Returns, it was held that the complainant had failed to prove that the disputed cheques were issued towards legally enforceable debt. In my view, merely because the amount of hand loan was given in cash, it cannot be said that the same was unaccounted cash and hence, Section 138 of the N.I. Act was not applicable. In the present case, there is no....