TaxTMI 
TaxTMI 
2025 (7) TMI 208
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....g Beauty Home Care services, of which his wife, Smt. Satinder Kaur was a regular customer. 3. In the beginning of November, 2014, Respondent No.3 along with the Accused No.1/Mr. Surjit Singh (Respondent No. 2 herein), approached the Complainant in November, 2014, for a loan of Rs.12,00,000/- to expand the Parlour business. The Complainant accordingly, gave a cheque dated 07.11.201 in the sum of Rs.12,00,000/- on 07.11.2014 in favour of the Complainant. Additionally, a Pronote dated 07.11.2014 which was also executed in respect of the loan amount. 4. On the instructions of the Respondents, the cheque was presented for encashment but was returned on the ground 'payment stopped by drawer' vide Return Memo dated 24.11.2014. The Legal Notice dated 12.12.2014 was served despite which the payment was not made by the Respondent Nos. 2 and 3. The Complaint, CC No. 41706/2016 under Section 138 N.I. Act, was filed. 5. The Complainant examined himself as CW-1 to corroborate his case. He also examined CW-2, Mr. Harpreet Singh, who was the witness to the Pronote. 6. The Statement under Section 313 read with Section 281 Cr.P.C. was recorded of the Respondents, wherein they denied havi....
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....onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence. 11. The Respondents filed two Applications under Section 145(2) N.I. Act; firstly on 02.06.2016 wherein for the first time, they contended that the cheque in question was issued as "security". They again filed another Application under Section 145(2) N.I. Act on 16.02.2017 wherein for the first time they admitted that Respondent No.3 was running a Boutique Parlour, but never stated that the cheque in question was issued for "security" purpose. 12. It is submitted that the possession of a duly executed cheque in the hands of its holder in itself, is suggestive of a liability/ debt of the account holder of the cheque unless the contrary is proved. Thus, the impugned Judgment is liable to be set aside. 13. Reliance has been placed on Kishan Rao vs. Shankargouda, (2018) 8 SCC 165 wherein the Apex Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt, shall not serve any purpose. 14. Reliance is also placed on Kumar Exports vs. Sharma Carpets, (2009) 2 SCC 513 wherein Apex Court observed ....
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.... provision, expression 'shall presume' cannot be held to be synonymous with 'conclusive proof'. 19. The scope of presumption under Section 118 (a) N.I. Act was considered by the Hon'ble Division Bench in Bharat Barrel And Drum Manufacturing Company vs. Amin Chand Payrelal, (1999) 3 SCC 35, wherein it was observed that where Defendant is able to discharge the initial onus of proof showing that the existence of consideration was improbable or doubtful, the onus would shift on the Plaintiff to prove it as a matter of fact and his failure would disentitle him to any relief on the basis of Negotiable Instrument. Such proof of existence or non-existence of consideration, may be established either by direct evidence or by bringing on record preponderance of probabilities by reference to the circumstances upon which the complainant relies. Where the Defendant fails to discharge the onus, the Plaintiff would invariably be entitled to the benefit of presumption under Section 118(a) N.I. Act. 20. The Supreme Court in the case of Basalingappa vs. Mudibasappa, in Crl.A. No. 636/2019, further held that where the Accused has proved a probable defence, the reverse onus of proof shifts on the....
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....Mr. Surjit Singh, the Respondent No. 2 and by CW-2, Mr. Harpreet Singh. 26. CW-2, Mr. Harpreet Singh was examined by the Complainant to prove this document, who deposed that he is the brother-in-law of the Complainant. He further stated that the Pronote dated 07.11.2014 in respect of loan of Rs. 12 Lakhs taken by lnder Kaur in presence of his son Surjit Singh, was witnessed by him and bears his signatures. He further stated that the Cheque in question was given by the accused persons to the Complainant in lieu of discharge of their liabilities. 27. However, in his cross-examination, he stated that when he had signed this document, Ex.CW-1/H 'Samjhauta' (Agreement entered between the parties at the time of alleged loan transaction) it was blank document (typed) and all the contents therein, have been filled by Pen subsequently and that he could not identify the handwriting on the Pronote. He clarified that no contents of the said Pronote was written in his presence. Therefore, from the testimony of Mr. Harpreet Singh, it is evident that he was not a witness to the hand endorsements which were made subsequently. He has not been able to prove the said document. 28. The learne....
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.... the yardstick of a prudent man. The Complainant has asserted that the Respondents had sought Rs.12,00,000/- for the purpose of business expansion. It does not appeal to prudence that the money so taken for expansion of business, could be returned within one month. 36. The entire transaction also becomes suspicious from the fact that while according to the Complainant, at the time of giving the loan on 07.11.2014, he got the 'Samjhauta'/Pronote executed on the same day. However, this Pronote is dated 07.11.2014 reflecting that the Loan was given in November 2014 and not in June/July, 2014 as claimed by the Complainant in his testimony. It does not seem reasonable that while the loan is allegedly given in June, July, the document/ 'Samjhauta'/Pronote got prepared on 07.11.2014. 37. This aspect assumes significance from the fact that according to the Complainant, the loan had been granted for a period of one month. If so was the case, the Cheque dated 07.11.2014 could not have been presented on 24.11.2014 i.e. barely after 15 days, which was against the terms of alleged grant of loan. This entire discrepancy, therefore, creates a huge doubt about any loan ever having been given....