TaxTMI 
TaxTMI 
2025 (6) TMI 1953
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....ainant's further case is that the said amount was given to the accused on good faith and she noted all the dates on which she had paid the amount to said accused in her daily note book, which has been marked as exhibit 9 in the present case. 3. In discharge of his existing legal debts and/or liability, the accused in the first week of 2007 issued two account payee post-dated cheques being no 055459 dated 21.12.2007 for Rs. 1,50,000/- which is marked exhibit-1 and another cheque being no. 055460 dated 8.2.2008 for Rs. 80,000/- which is marked as exhibit 2 in favour of the complaint. Thereafter the complainant deposited the said account payee cheques with her banker but both the cheques were dishonoured with the endorsement "account number closed" and said cheque return memo dated 14.02.2008 and 16.02.2008 are marked as exhibit 3 and 4. The complainant/appellant herein sent demand notice under registered post with A/D card on 10.03.2008 and it was received on behalf of the accused on 24.03.2008 and copy of said notice and postal acknowledgment are marked exhibit 5, 5/1, 5/2. The allegation of the complainant is that despite receipt of the legal notice, the accused failed to pay th....
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....e N.I Act clearly attracts in the present case and the court below ought to have drawn the presumption that the cheques were issued for consideration and until contrary is proved, such presumption would remain. In the instant case except mere denial during cross examination of complainant's witness, nothing was brought on record by the accused to dislodge the proof adduced by the complainant/appellant. 6. He further argued that the allegation of not showing the transaction in question in the income tax return of the appellant concerned or not producing the tax return, does not in any way rebut the presumption of the existence of legally enforceable debt. He further contended that the court below has refused to accept the evidentiary value of the testimony of P.W.-2 in the absence of authorization letter, but it appears that the court below has passed the order of acquittal based on the documents and evidence adduced by PW 2. He further contended that the accused despite receipt of the legal notice, has intentionally chosen not to reply to the said legal notice which makes it abundantly clear that the accused from the very inception had no intention to clear his legally enforceab....
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.... Therefore, the appellant did not show her capacity to give the said amount to the accused and therefore, the appellant failed to make out the existence of any legally enforceable debt which is quintessential for the initiation of proceeding under section 138 of N.I. Act. The appellant during her cross examination admitted that she does not know Ani Das in one hand and on the other hand in para 6 of the complaint she stated that the wife of the accused received the demand notice on 24.03.2018 and therefore, the appellant failed to prove who has received the demand notice. He further contended that the note book marked exhibit 9, allegedly written and maintained by the appellant but it was not produced by the appellant herself but by the husband of the appellant. In this context he further argued that relevancy of a hand written note book can arise only in cases of civil in nature but not in the criminal proceeding initiated under section 138 of the N.I. Act, where the complainant/ appellant has to discharge the burden to show the existence of legally enforceable debt which the complainant has failed to prove in the instant case, beyond reasonable doubt and in support of his argumen....
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.... of such consideration or debt and/ or to prove that under the particular circumstances of the case, the non-existence of the consideration and debt is so probable that a prudent man ought not to suppose that no consideration or debt existed. 12. Learned court below while passed the impugned judgment unnecessarily laid emphasis on certain irrelevant considerations without considering the fact that no challenge was offered regarding the entry or the hand writing note in the Exercise Book, marked exhibit 9, except raising objection at the time of marking said document as exhibit. However, accused did not make minimum effort to substantiate as to why he raised objection, while the said Exercise Book was admitted in evidence. Even while the accused was examined under section 313 Cr.P.C. he has only taken the plea of innocence and nothing further. In fact the court below failed to consider that the question is whether or not the amount given to the accused was stated in the note book and that no challenge was offered on behalf of the accused in noting the entry regarding the advancement of said amount to the accused and that her version has been supported by PW-3. Even it is not unde....
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.... the mere ground of "creation of doubt". We are of the considered view that the trial court appears to have proceeded on a misplaced assumption that by mere denial or mere creation of doubt, the appellant had successfully rebutted the presumption as envisaged by Section 139 of the NI Act. In the scheme of the NI Act, mere creation of doubt is not sufficient. 22. The result of discussion in the foregoing paragraphs is that the major considerations on which the trial court chose to proceed clearly show its fundamental error of approach where, even after drawing the presumption, it had proceeded as if the complainant was to prove his case beyond reasonable doubt. Such being the fundamental flaw on the part of the trial court, the High Court cannot be said to have acted illegally or having exceeded its jurisdiction in reversing the judgment of acquittal. As noticed hereinabove, in the present matter, the High Court has conscientiously and carefully taken into consideration the views of the trial court and after examining the evidence on record as a whole, found that the findings of the trial court are vitiated by perversity. Hence, interference by the High Court was inevitable....