TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 837
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....Court-III, Hosdurg. 4. The common pleadings in the complaints are as follows:- The complainant is a public limited company established under the Companies Act, 1956. The company is represented by its Managing Director. The Articles of Association of the complainant company authorize and empower the Managing Director to represent the company in all legal matters. The Board of Directors of the company held on 12.08.2016 empowered the Managing Director of the company to initiate legal proceedings against the accused. 5. The accused is the proprietor of M/s.A & J Rubbers, Kannur. The complainant and the accused entered into an unregistered agreement on 1.8.2014, whereby the accused agreed to purchase ammoniated-filled latex from the complainant from 1.8.2014 to 31.12.2015. A sum of Rs.1.37 crores is due from the accused to the complainant. In discharge of his legally enforceable debt, the accused executed 17 post-dated cheque leaves. The present complaints relate to three out of the above-said cheques. C.C.No.72 of 2018 6. The cheque involved in this case is cheque bearing No.224445 dated 8.11.2016 for a sum of Rs.10,00,000/- drawn on the ICICI Bank, Kannur Branch. The complainant p....
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....ment of the accused under Section 313 Cr.P.C. was recorded. He pleaded that the complainant misused the cheque he gave as security. However, no defence evidence was adduced. 12. The trial court found the accused guilty of the offence punishable under Section 138 of the Negotiable Instruments Act. The accused admitted the execution of the agreement dated 1.8.2014 with the complainant. The cheques were issued as security. The complainant misused the cheques for unlawful gain. 13. The trial court convicted the accused under Section 138 of the Negotiable Instruments Act in all the three cases and sentenced to undergo simple imprisonment for a period of six months each and to pay a compensation of Rs.10,00,000/- each under Section 357(3) of the Cr.P.C. The accused challenged the judgments of conviction and sentence by the trial court before the Sessions Court, Kasaragod, which confirmed the conviction and sentence in the three cases. Evidence 14. The Managing Director of the complainant company gave evidence as PW1. He filed an affidavit in lieu of chief examination. In the chief affidavit, he stated that the Articles of Association of the Company authorize and empower the Managing....
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....s. He has not disputed the execution of the agreement dated 1.8.2014. His only contention is that there is no legally enforceable debt, as pleaded by the complainant. The complainant has produced the ledger extracts maintained by the company to establish the liability. The accused has issued a confirmation letter in favour of the company admitting the liability. The accused has not disputed any of the documents produced by the complainant. 18. The trial Court and the Sessions Court concurrently found that the complainant established the execution of the cheques. 19. I have gone through the pleadings in the complaints, the oral evidence adduced by PWs 1 to 3 and the documents, including the cheques in dispute, the agreement dated 1.8.2014, copy of the ledger extracts, the confirmation letters and the lawyer's notices. I find no irregularity in the finding of the trial court and the Sessions Court that the complainant established the execution of the cheques. Once the complainant has established the execution of the cheque, a presumption is drawn in favour of the complainant that the cheque was issued by the accused in the discharge of a debt by virtue of the presumptive device....
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....ion. PWs 2 and 3, the employees of the company during the relevant period, specifically stated about the liability of the accused towards the company. They also gave evidence in support of the case of the complainant that the accused executed the cheques in dispute. 23. PW2 specifically stated that the accused executed the cheques in his presence. PW3 also supported the case of the complainant. The contention of the learned counsel for the accused relying on Gujarat Guardian Limited (M/s.) v. George Kurian (2015 (2) KHC 516) is not applicable to the present facts. The learned counsel for the accused highlighted another discrepancy in the pleadings and the evidence regarding the number of cheques executed. In the complaint, the complainant pleaded that the accused executed 17 cheques. While giving evidence, PWs 2 and 3 stated that the accused executed only 13 cheques. This discrepancy will not affect the merit of the case of the complainant as the complainant has successfully proved the liability and execution of the cheques. 24. The only question to be considered is whether the accused discharged his evidential burden to rebut the mandatory presumption. True that the standard of ....