AI Drafter 
TaxTMI 
TaxTMI 
2021 (4) TMI 1388
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....ment for a period of 3 months and to pay fine of Rs. 3,000/- and in default to pay fine undergo simple imprisonment for a period of one month for the offence punishable under Section 138 of the N.I. Act. 2. Brief facts of the case are that, the appellant herein as complainant filed the Private Complaint in PCR No.80/2006 before the Trial Court against the accused alleging commission of the offence punishable under Section 138 of the N.I. Act. It is stated that the complainant is the owner of the Petrol Bunk named as 'Uma Shankar Auto Fuels'. The accused was running a transport business and he used to purchase diesel for his trucks from the complainant. Thus, the accused purchased fuel worth Rs. 15,000/-. Complainant demanded payment of the amount and the accused issued the cheque dated 13.12.2005 for Rs. 15,000/- drawn on Basaveshwar Co-operative Credit Society Limited, Sirsi (for short the 'Society') in favour of the Uma Shankar Auto Fuels, Sirsi, of which the complainant is the Proprietor. The said cheque was presented for encashment, but the same was dishonoured as there was 'insufficient fund' in the account of the accused. The complainant issued legal notice informing the a....
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....diesel for his trucks and to discharge his dues of Rs. 15,000/-, the cheque-Ex.P.1 was issued by the accused, which came to be dishonored, as there was insufficient funds in the account of the accused. Even though, the legal notice was issued, same was not claimed by the accused nor he has paid the cheque amount, thereby the accused committed the offence punishable under Section 138 of the N.I. Act. The complainant examined himself as P.W.1 and got marked Ex.Ps.1 to 5 before the Trial Court. The Trial Court properly appreciated the materials on record and convicted the accused for the above said offence. However, the Appellate Court proceeded to acquit the accused on flimsy ground. The finding of the Appellate Court that the complainant ought to have been filed in the name of 'Uma Shankar Auto Fuels', Sirsi represented by its Proprietor or any other responsible person, is erroneous. The finding given by the Appellate Court that there is inherent defect in the complaint, is also not sustainable. 7. Learned counsel for the appellant relied on the decision in the case of Shankar Finance and Investments vs. State of Andhra Pradesh and Others (2008) 8 SCC 536 in support of his conten....
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....by the cheque in question is tampered. 11. Ex.P.1 is the cheque dated 13.12.2005 drawn infavour of 'Uma Shankar Auto Fuels, Sirsi' for Rs. 15,000/-. Ex.P.2 is the memo dated 06.03.2003, issued by the Society to the Manager of Canara Bank, Sirsi, returning the cheque in question, as there is 'insufficient fund' in the account of the drawer i.e., the accused. Ex.P.3 is the copy of the legal notice got issued by the complainant to the accused calling upon him to pay the cheque amount. Ex.P.4 is the postal envelope addressed to the accused returned to the sender as it was 'not claimed'. Ex.P.4(a) is the notice found in the postal envelope(Ex.P.4). Ex.P.5 is the Private Complaint filed by the complainant in PCR.No.80/2006 before the Trial Court. 12. The accused after denying the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. filed his affidavit in lieu of examination- in-chief and stated that he is not having knowledge about the complainant being the owner of a Petrol Bunk. All the contentions taken by the complainant with regard to issuance of the cheque and dishonour of the same and also issuance of the legal notice and return ....
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....used. Therefore, contention of the accused that it is not a cheque, but it is only a withdrawal slip, cannot be acceptable. 16. During cross-examination of the P.W.1, the learned counsel for the accused contended that the accused is not running the transportation business at all, but when D.W.1 was in the witness box, he categorically admitted that he is running a transport business. But however, he denied that he purchased diesel or petrol from the Petrol Bunk belonging to the complainant. 17. It is pertinent to note that the accused categorically admitted his signature found on Ex.P.1 and stated that he had kept Ex.P.1 duly signed in his pocket and the complainant had taken it and filled the figures and other details without his permission. But strangely there is no such cross-examination to P.W.1, when he was in the witness-box. Therefore, it is clear that accused is taking contradictory stand while defending the case. There is no explanation by the accused as to how the complainant came in possession of Ex.P1, which was kept by the accused in his pocket. Admittedly, no complaint is lodged against the complainant in that regard, nor the accused instructed his Banker to sto....
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....blished legal position as discussed above, and amounts to patent error of law. 16. No doubt, and as correctly argued by senior counsel for the appellants, the presumptions raised under Section 118 and Section 139 are rebuttable in nature. As held in MS Narayana Menon v. State of Kerela (2006) 6 SCC 39, which was relied upon in Basalingappa v. Mudibasapp (2019) 5 SCC 418, a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. These principles were also affirmed in the case of Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 wherein it was further held that a bare denial of passing of consideration would not aid the case of accused. 17............ 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, where this court held that: "Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumpti....
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....laint as the Proprietor of the proprietary concern. However, the Appellate Court proceeded to allow the appeal on the sole ground that the complainant is not properly represented before the Trial Court. 22. The Hon'ble Apex Court in Shankar Finance Investments (supra) had an occasion to discuss about the requirements under Section 142(1)(a) of the N.I. Act and held as under: "9. Section 142(a) of the Act requires that no court shall take cognizance of any offence punishable under Section 138 except upon a complaint made in writing by the payee. Thus the two requirements are that (a) the complaint should be made in writing (in contradistinction from an oral complaint); and (b) the complainant should be the payee (or the holder in due course, where the payee has endorsed the cheque in favour of someone else). The payee, as noticed above, is M/s. Shankar Finance & Investments. Once the complaint is in the name of the "payee" and is in writing, the requirements of Section 142 are fulfilled. Who should represent the payee where the payee is a company, or how the payee should be represented where payee is a sole proprietary concern, is not a matter that is governed by Section....