9911796707
TMI Blog2017 (1) TMI 1265X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case in a conspectus fashion and also by considering the defence taken on behalf of the Respondent / Accused comes to an inevitable and irresistible conclusion that the Respondent / Accused had raised some probable defences in the present case. In fact, the Appellant / complainant had not established his case under Section 138 of the Negotiable Instruments Act, 1881 against the Respondent / Accused. Looking at from any angle, the Criminal Appeal fails. - Crl.A.No.59 of 2014 - - - Dated:- 4-1-2017 - MR. M.VENUGOPAL, J. For The Appellant: Mr.R.Nalliyappan For The Respondent: Mr.T.R.Ravi JUDGMENT The Appellant / Complainant has filed the instant Criminal Appeal before this Court as against the STC No.395 of 2012 passed by the Learned Judicial Magistrate (FTC, Magisterial Level), Thiruchengode. 2. The Learned Judicial Magistrate (FTC, Magisterial Level), Tirchengode) while passing the impugned Judgment in STC No.395 of 2012 on 26.06.2013 at Paragraph Nos.47 to 49 had clearly observed the following: 47.In this case, the evidence on record makes it abundantly clear that the accused has proved the defence taken by him by preponderance of probabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial court had shifted burden on the Appellant / Complainant when the Respondent / Accused took a stand that he had issued the cheque to Ganapathy Finance and not to the Appellant / Complainant, which is unsustainable in law. 7.According to the Learned Counsel for the Appellant once the signature of the cheque was not disputed, the presumption in Law is that the Respondent / Accused had issued the cheque and in short the Respondent / Accused is to rebut the presumption without sufficient evidence. However, these aspects were not looked into by the trial court in a proper and real perspective. 8. The Learned Counsel for the Appellant takes a emphatic stand that the trial court was not correct in acquitting the Respondent / Accused based on the reason that the Appellant / Complainant had not established his subsisting liability for which the cheque was issued to the Respondent / Accused without considering the fact that the Appellant / Complainant had established his initial onus and to disprove the same, the Respondent / Accused had not examined any one from 'Ganapathy Finance' or from 'Tamirabarani Enterprises'. 9. The Learned Counsel for the Appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Inasmuch as the Respondent / Accused had not paid the outstanding amount due to the Appellant / Complainant or to pay the amount of cheque issued by him because of the reason that the cheque got dishonoured, a complaint was lodged by the Appellant before the trial court which was taken on file in STC No.395 of 2012. 14. To appreciate the factual aspects of the main case, it is useful for this Court to make a significant mention of the evidence of the relevant concerned witness. 15. It is the evidence of P.W.1 (Appellant / Complainant) (in cross examination) that he owns 50 Electric Power Looms and by keeping 20 persons for work he looks after his business and he is not carrying on any work other than 'Agriculture and Electric power Loom' and per year through agriculture he was getting an approximate profit of ₹ 5,00,000/- and through Electric Power Loom Business, as his share, per year he was getting a profit of ₹ 10,00,000/- and that he is not paying any licence amount towards the running 'Electric Power Loom Business' or for his income he is not paying the Income Tax. 16. P.W.1 proceeds to state in his evidence (in Cross examination) that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Chemicals on 16.06.2009 subsequently on 12.06.2010 another cheque book containing Cheque Leaves bearing no. 113451 to 113500 were given and on 11.02.2011 another cheque containing cheque leaf bearing No.839906 was given and Ex.D.13 was the Account Ledgerr computer true copy and since the initial cheque book (containing cheque leaves) were over, based on the letter, again the cheque book was issued. 20. At this juncture, a mere running of the contents of Ex.P.3 Lawyers Notice addressed to the Respondent / Accused indicates that a sum of ₹ 3,00,000/- was borrowed from the Appellant (Complainant) on 25.02.2011 for Respondent / Accused's urgent family and business expenses and that the Respondent / Accused had issued post dated cheque dated 29.03.2011 to the Appellant / Complainant, to discharge the 'Legally Enforceable Debt'. Further, in the said notice it was mentioned that the said cheque bearing no.088715 drawn at IDBI Bank limited, Erode Branch was deposited for collection on 29.03.2011 with his Corporation Bank, Palipalayam Branch etc., 21. In this connection a cursory glance of Ex.P.5 (Lawyer's reply notice dated 30.04.2011 issued on behalf of the R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Respondent / Accused that he had issued Cheque No.088715 and the pronotes to the aforesaid Finance Company towards security for the loan amount and that he had paid the entire outstanding loan amount to the said Finance Company in the year 2010 itself. After making the old payment, the Respondent / Accused had requested the Finance Company to return back his cheque and pronotes, which were given towards security for the loan in question but the finance company had not return back the cheque leaves etc., 26. The core stand taken on behalf of the Respondent / Accused is that in the instant case, there is no 'Legally Recoverable Debt' as averred by the Appellant / Complainant. 27.It cannot be gainsaid that the presumption envisaged under Section 139 of Negotiable Instruments Act, 1881 is a rebuttable presumption. As a matter of fact, 'Burden of Proof' is not 'Static'. If the initial 'Onus' is discharged by the Appellant / Complainant, then, it is for the Respondent / Accused to produce rebuttal evidence, of course, in the manner known to law and in accordance with law. 28. Also that it is to be borne in mind that Section 138 of Negotiable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
