TaxTMI 
TaxTMI 
2025 (7) TMI 276
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....Market. She assured minimum return of 10% per month on sum invested. He, induced and deceived by such representations of the Respondent, gave Rs. 7,50,000/- from 22.08.2017 till 04.09.2017 to the Respondent for investing in stock market under Portfolio Management Scheme. On 21.09.2017, Respondent credited a sum of Rs. 75,000/- in his account for the month of September, 2017, but thereafter, she failed to give any return/profit to him. 3. On his repeated demand to return the money, the Respondent issued a cheque No.820783 dated 25.06.2018 for Rs. 7,50,000/- drawn on IDBI Bank, CR Park, New Delhi. However, on presentation the said cheque was dishonoured with the remarks 'Funds Insufficient' vide Cheque Return Memo dated 27.06.2018. The Complainant gave Legal Notice dated 11.07.2018 to the Respondent at her correct residential address, but she manoeuvred to get it returned with remarks 'house found locked and left'. The Appellant then filed the Complaint under Section 138 NI Act. 4. The Respondent appeared before the Court on receiving the summons. Notice under Section 251 Cr.P.C. was framed in response to which she admitted her signatures on the cheque, but took the defence that sh....
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.... the Respondent on 22.08.2017 and gave Rs. 55,500/- in cash. He further gave Rs. 2,50,000/- in cash on 02.09.2017 and lastly, on 04.09.2017 deposited Rs. 3,00,000/- in the bank account of the Respondent. A total sum of Rs. 4,44,500/- was thus, paid to the Respondent through bank transactions, while Rs. 3,05,500/- was given in cash. The Respondent has admitted in her cross-examination that she had received the payment of Rs. 1,44,500/- from 22.08.2017 and of Rs. 3,00,000/- on 04.09.2017 from the Appellant. The bank payment of Rs. 4,44,500/- and admission made by the Respondent in her cross-examination, belied her defence that she had received only Rs. 1,44,500/-. 10. It is further asserted that learned M.M. has not appreciated that the Complainant is having a Gift shop and catering business, which are retail in nature. The Complainant had explained in his cross-examination that the cash amount was from the sales collection from his shop. 11. The learned MM has failed to consider the conduct of the Respondent, who has been lying throughout and has never taken a consistent defence. In the Notice under Section 251 Cr.P.C., she had admitted that she had taken a loan of Rs. 2,00,000/- ....
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....ufficient for maintaining the Complaint under Section 138 NI Act. 17. The Complainant has failed to show that he had the financial capacity to finance such huge amount and to produce any documentary evidence in regard to the investment of money in shares or debentures. There is no privity of contract to show that alleged money was invested by the Appellant in Portfolio Management Business. 18. Furthermore, there is no document whatsoever to even prima facie show that the Respondent was in such business where there was cash generation, since it can be done only by way of cheque or transfer of money through bank transactions. 19. The Respondent has denied that she was in the business of Portfolio Management Scheme and claimed that the Complainant has failed to show that Rs. 7,50,000/- had been paid by him. Even though there is an entry of Rs. 3,00,000/- transfer in her account, but there is no further evidence to corroborate the payment of Rs. 4,50,000/-, which is sufficient to discharge the Respondent. 20. There is no document to support the alleged investment nor is there any document / income tax record to prove the making of investments by the complainant in the business of s....
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....f the cheque No. 820783 dated 25.06.2018 of Rs. 7,50,000/- drawn in favour of the Complainant, on account of insufficiency of funds. 28. The respondent has admitted her signatures on the cheque but has taken the defence that blank cheques were given as Security Cheques to secure the Loan of Rs. 1,50, 000/- taken by her, which has had been misused by the Complainant and that there was no existing liability. 29. In Bharat Barrel & Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35 interpreting Section 118(a) of the Act, this Court opined: "12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its fai....
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....d in discharge of any debt/liability, but the accused has two options. The first option is to prove that the debt/liability does not exist- and conclusively establish with certainty that the cheque was not issued in discharge of a debt/liability. The second option is to prove the non-existence of debt/liability by a preponderance of probabilities by referring to the circumstances of the case. 33. This position has been endorsed by the Apex Court in a catena of judgments in Rajesh Jain vs. Ajay Singh, 2023 SCC OnLine SC 1275 and most recently reiterated in Ashok Singh vs. State of Uttar Pradesh & Anr., 2025 LiveLaw (SC) 383. 34. The Respondent has sought to discharge this onus by setting up a defence that she did not take a Loan of Rs. 7,50,000/- but only of Rs. 1,50,000/- which stands repaid for which she has relied on the evidence available on record. 35. The Respondent had deposed that she was a widow single lady, who was having a shop for supplying the dry fruits in retail. She became friendly with the Complainant, who was having a shop near hers and used to frequently visit her shop for purchasing dry fruits. Having become friendly, she had sought a loan of Rs. 2,00,000/- on....
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.... 40. Also, as per the Complainant, he had allegedly given Rs. 3,05,500/- in cash but there are no details forthcoming in regard to this alleged cash payment of part Loan. No Shares Account in which allegedly invest 41. ents were made by the Respondent, has been proved. The Appellant has miserably failed to prove the investment of Rs. 7,50,000/- with the Respondent. 42. The Respondent on the other hand, has taken a defence that Rs. 1,50,000/- had been taken by her as loan, which is corroborated by the entries in her bank statements Ex.DW-1/A, which shows that Rs.1,44,000 and Rs.500/- were deposited in her bank account on 22.08.2017 by the Appellant M/s Celebrations. 43. To prove that the Loan amount was returned, it is not denied that Rs.75,000/- had been transferred to the account of the Complainant on 21.09.2017 which she has asserted was towards return of the Loan amount. She also has claimed that she was paying Rs.21,000/- per month from September, 2017 to February, 2018, which come to Rs.1,26,000/-. This amount is added to Rs. 75,000- it comes to Rs.2,01,000/-, which according to her is the total loan amount along with the interest @ 5 % per month. While it may be a weak defe....