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TMI Blog2007 (12) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... d all these cheques got dishonoured. No payment was made despite notice under Section 138 of NI Act and hence the complaint was filed. The accused/ respondent No. 2 (hereinafter as respondent) took a common stand in all three cases that he had no privity of contract with any of the complainants at any stage of time. The cheques which were subject matter of the complaint were given to the employee of Mr. Nalin Tokas, who used to collect the cheques on account of Chit Fund floated by Mr. Nalin Tokas in the name of Classical Star Chit Fund Private Limited. Signed cheques were given in advance to ensure the payment of monthly chit amount by the respondent. The respondent on each cheque had mentioned 'Not to exceed ₹ 10,000/-' sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be ₹ 15,000/- while cheque amount was ₹ 15,700/-. The learned Metropolitan Magistrate observed that from the testimony of complainant and cross-examination of complainant, it was apparent that there were deviations in the evidence of each case from the facts stated in the complaint. In Crl. Appeal No. 771/2007, the complainant stated in the complaint that cheques were issued for lesser amount and it was assured that remaining amount of ₹ 200/- would be paid later on. During evidence the complainant changed the stand and stated that the amount of ₹ 200/- was paid in cash and cheques for ₹ 19,800/- were issued. In Appeal No. 772/2007, the complainant initially stated that cheques were issued to him with amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct evidence and could disprove the case without holding evidence. The appellant relied upon II (2001) BC 773 (SC) : III (2001) CCR 43 (SC) : (2001) BC 773 (SC), Hiten P. Dalai v. Bratindranath Banerjee wherein Supreme Court observed as under: 23. Judicial statements have differed as to the quantum of rebutting evidence required. In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316, this Court held that the presumption of law under Section 118 of Negotiable Instruments Act could be rebutted, in certain circumstances, by a presumption of fact raised under Section 114 of the Evidence Act. The decision must be limited to the facts of that case. The more authoritative view has been laid down in the subsequent de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no doubt that the burden rests on the accused to rebut the presumption as raised under Sections 139 and 118 of the Negotiable Instruments Act. However, this presumption can be rebutted by the accused not merely by examining his own witnesses but even by cross-examination of the complainant and his witnesses and bringing out on record, through cross-examination, that the complainant was aliar and there was no privity of contract between the complainant and the accused and cheques were misused. It must be kept in mind that once evidence is brought on record from both the sides, it is evidence of the case and Court can draw inference from the evidence in favor or against either of the parties. Evidence is a complainant's evidence and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt was different. All this fortifies the case of the respondent that all these cheques were those cheques which were given by the respondent for Chit Fund Company and misused by the employees of the Chit Fund Company at the instance of the Director or owner of the Chit Fund Company to show personal loans. If the complainants had come up to the Court with clean hands stating that the cheques with filled-in amount were endorsed in their favor by the Chit Fund Company, the case would have been different but all the three complainants had come to the Court with unclean hands, their testimony itself failed them. Their inability to explain during cross-examination various facts was enough to rebut the presumption raised against the accused. 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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