TaxTMI 
TaxTMI 
2023 (11) TMI 458
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....ing that accused had taken friendly loan of Rs. 1,75,000/- in May 2009 for a period of one month, promising to refund the same along with interest @ 24% per month. In order to discharge his liability, accused issued account payee cheque No.344062 dated 10.06.2009 for an amount of Rs. 1,75,000/- drawn on IDBI Bank Ltd. Sector 16, Faridabad, favoring the complainant. However, on presentation, the cheque was returned unpaid vide return memo dated 11.06.2009 with remarks 'drawers signature incomplete'. Intimation was received by the complainant in this regard from his banker on 13.06.2009. Complainant then served a legal notice dated 15.06.2009 through his Advocate and sent it to the accused through registered post, asking him to make payment of the cheque amount within 15 days of the receipt of the notice. However, despite receipt of the notice, accused failed to make payment. With these allegations, complaint was filed on 30.07.2009. 4. After recording preliminary evidence, process against the accused was issued on the same day i.e., 30.07.2009. Despite service, in accordance with law, accused did not put in appearance and was ultimately declared proclaimed person vide order dated 0....
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....tual loan amount was Rs. 55,000/- only, out of which he had already paid Rs. 40/45,000/- and thus, there was no liability. It was contended further that trial Court had ignored the evidence produced by him and had wrongly convicted him. Prayer was made to set aside the conviction and sentence as recorded by the trial Court. 9. The aforesaid appeal, as filed on 13.07.2015, was accompanied by an application for condonation of delay. It was pleaded in the application that the previous counsel had not informed the applicant-accused about the decision of the case; that he came to know about the decision only on 01.07.2015 and after obtaining the certified copy of the judgment, he filed the appeal, and so the delay was not intentional. 10. Perusal of the appeal file reveals that without passing any order on the application for condonation of delay, the appeal was admitted on 16.07.2015. The accused-convict was released on bail on the same day. Notice of appeal only was issued to the respondent-complainant. Thereafter, vide impugned judgment dated 26.02.2016, the Court of ld. Additional Sessions Judge, Faridabad not only allowed the application thereby condoning the delay, but further s....
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....oclaimed person on 07.03.2012 and was produced by the police on 19.03.2012. After the trial was concluded and his conviction was recorded on 16.01.2014, his sentence was suspended for a period of 30 days to enable him to file appeal before the Court and in the meantime, he was admitted to interim bail vide order dated 16.01.2014. However, as noticed earlier, he neither filed appeal nor surrendered before the trial Court and rather, absconded. His bail was cancelled and ultimately, he was produced by the police after arresting him on 01.07.2015. 17. In the aforesaid circumstances, the plea taken by the accused in his application for condonation of delay moved before the Appellate Court to the effect that his previous counsel had not informed about the decision and that on coming to know of the same, he obtained the certified copy and then filed the appeal, is absolutely not sustainable. There was no justifiable reason for condoning the delay in filing the appeal on 13.07.2015 i.e., with delay of more than one year and as such, the order of ld. Appellate Court, allowing the application for condonation of delay, is reversed. 18. Though appeal of the accused against his conviction de....
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.... it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; (b) as to date. - that every negotiable instrument bearing a date was made or drawn on such date;" 22. In Rangappa vs. Sri Mohan, 2010 (3) Criminal Court Cases 022 (S.C.): 2010 (3) Civil Court Cases 115 (S.C.): 2010 (2) Apex Court Judgments 285 (S.C.): 2010 (11) SCC 441, a three judges bench of the Hon'ble Supreme Court held that Section 139 of the NI Act includes the presumption regarding the existence of a legally enforceable debt or liability and that the holder of a cheque is also presumed to have received the same in discharge of such debt or liability. It was clarified in the aforesaid decision that the presumption of the existence of a legally enforceable debt or liability is, of course, rebuttable and it is open to the accused to raise a defence, wherein the existence of a legally enforceable debt or liability can be contested. Without doubt, the initial presumption is in favour of the complainant. 23. Hon'ble Supreme Court further held in above case that Section 139 of the NI Act is stated to be an example of a reverse onus clause, which is....
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....e doubt' and rather, is simply required to probabilise his defence. The presumption under Section 139 of the Act can be rebutted even by evidence led by the complainant; and it is not required for the defence to lead evidence to rebut presumption, as has been held by the Hon'ble Supreme Court in Shiv Kumar Vs. Ram Avtar Aggarwal, 2020(2) RCR (Crl.) 147. 26. In order to rebut the presumption available to complainant under Section 139 of the NI Act, accused can either appear in the witness box though it is not mandatory; or he can elicit circumstances favourable to him during the cross-examination of complainant; or put forth his defence in his statement under Section 313 Cr.P.C. supported by evidence. Here itself, it may be noted that statement of accused under Section 313 Cr.P.C is not a substantive piece of evidence. If accused put forth his defence in said statement, he must support it with evidence. Reliance can be placed on Sumeti Vij Vs. M/s Paramount Tech Fab Industries, 2021(2) CCC 348 (SC). 27. In a case to prosecute the accused under Section 138 of the NI Act, the accused gets first opportunity to put forth his defence by responding to the legal notice, which is sent to ....
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....am Rama Vs. Devinder Singh Hudan & Anr., 2019(4) CCC 596 (SC) to the effect that statement of accused under Section 313 Cr.P.C is not substantive evidence. 31. In view of the above legal position, simply by taking the stand either in reply to the legal notice or in the statement under Section 313 CrPC that accused had taken loan of Rs. 55,000/- only and that blank cheque was given as a security, it cannot be stated that presumption in favour of the complainant stands rebutted or that the defence is probablized. 32. It is no doubt true that when accused entered the witness box as DW1, he repeated this stand by way of his affidavit Ex.DW1/A to the effect that he had taken Rs. 55,000/- on 10.11.2008, in lieu of which accused had taken his signature on blank papers and had also taken a blank signed cheque as security. However, most importantly, when complainant-Girraj Sharma entered the witness box as CW1, this stand was not confronted by the accused to the complainant at all. There is no suggestion that loan of Rs. 55,000/- only was taken on 10.11.2008. There is absolutely no suggestion that complainant had taken signature of the accused on any blank papers. There is no suggestion t....
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....eceipt of the legal notice much prior to the filing of the complaint as evident from AD card Ex.C5 and as also candidly admitted by the accused, he did not respond to the legal notice and rather gave reply much after filing of the complaint and so said factor could not have been taken into consideration. Once the signature on the cheque were admitted by the accused in so many words, not only by making positive suggestion to the complainant, but also in his statement under Section 313 CrPC and then in his defence evidence, the existence of legal liability remained not in dispute at all, in view of presumption under Section 139 of the NI Act. Simply because it was pleaded by the complainant that he had given friendly loan of Rs. 1,75,000/- on interest @ 24% per annum, it could not be concluded that complainant was indulging in money lending business, particularly when he disclosed during cross-examination that he is not having any case pending against any of his other friends. Section 58 of the NI Act provides about the instrument obtained by unlawful means or for unlawful consideration. The said provision is absolutely not applicable to the facts of the present case, simply because ....