2024 (4) TMI 29

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....e NI Act. 2. The complaint was filed by the appellant under Section 138 of NI Act alleging that he is engaged in the business of manufacturing of polythene bags and tubes and printing on the same. The respondent Ashwani Sharma is stated to be the proprietor of M/s Sidh Polywraps and is stated to be engaged in the business of polybags and tubes. 3. It was further alleged in the complaint that to meet the requirements of his business respondent/accused used to take raw materials from the appellant/complainant on credit basis from time to time. The respondent/accused issued two cheques - first bearing no. 654461 dated 10.09.2004 for an amount of Rs. 10,000/- and the second cheque no. 620794 dated 01.02.2005 for an amount of Rs. 2 lacs, b....

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....presented in the year 2005. 9. The statement of the respondent/accused was thereafter recorded under Section 313 CrPC read with Section 281 CrPC. In his said statement, he stated that - (i) the cheques in question were not given by the respondent/accused but rather the same were removed from his office by the complainant, (ii) the respondent/accused has no liability toward the complainant, and (iii) the complainant used to take goods from the respondent/accused and the cheques in question have been filled by the complainant himself and he identify the complainant's handwriting. 10. After sifting the evidence, the learned Trial Court recorded a finding that since the signatures on the cheques are admitted by ....

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....e so called ledger Ex. DW1/C1 is not properly proved for want of certificate under Section 65B of the Evidence Act. 15. The findings recorded by the learned Trial Court reads thus: "14. During cross-examination of CW1 Sh. Amit Bahl, he has deposed that he did not place any bill on record for supply of the material to the accused though he stated that he maintains the account and the said bills are entered in the account statement. He further deposed during his cross-examination that accused used to sell goods to him. He further deposed that he also used to supply goods to the accused. Examining the deposition of the complainant and the evidence produced by the accused through his own testimony, this court finds that the accused ....

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....the accused has been able to raise probable defence that the cheques Ex. CW1/3 and Ex. CW1/6 were not issued for any legally recoverable debt or liability. 15. Since the accused has been able to rebut the presumption raised U/s. 139 of the NI Act in respect of both the cheques, onus shifts on the complainant to prove its case beyond reasonable doubt that the cheques were issued in discharge of legally recoverable debt or liability. {See Pine Product Industries v. RP Gupta 2007(94) DRJ 352). However, the complainant has not produced any bills or the invoice raised against the accused. In fact, the ledger Ex. DW1/C1 produced is not properly proved by the complainant. In the absence of any material on record to show that the goods wer....