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TMI Blog2018 (10) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... tents thereon, then in the considered opinion of this court, he is liable to disprove the case of the complainant as the complainant has shifted the burden to prove the case upon the accused. It is seen form the records that quite numbers of cheques were issued followed by the execution of Ex-R1. Apart from that the transactions are supported by other documents as admitted by either parties. At this juncture, it is relevant to point out here that though the counsel for the accused denied the passing of consideration; he has no answer as to why the statutory demand notice was not replied properly and why legal action was not taken as against the complainant. Moreover these aspects are to be answered properly by the accused as the accused is the executant of all the documents including the cheques. Whether Section 139 of N.I. Act will aid the appellant company? - Held that:- Admittedly the accused company had not denied the execution of subject cheques and the signatures therein. Thus it is needless for this Court to say that the respondents’ company had not rebutted the presumption provided under Sections 118 and 139 of N.I. Act - In the instant case, the initial burden of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses noted in the tabular column given below, but the orders passed in all the calendar cases are one and the same day, dated 20.07.2005 on the file of the learned XVII Metropolitan Magistrate, Saidapet, Chennai. Tabular Column S.No. Crl.A.Nos. C.C.No. Cheque No. Date Amount 1. 403 of 2006 591 of 1998 657378 /1.10.1998 Rs.1,94,000/- 2. 404 of 2006 2360 of 1998 657380 / Rs.1,94,000/- 3. 405 of 2006 6598 of 1998 822356/1.9.1998 Rs.2,05,000/- 4. 406 of 2006 6599 of 1998 822369/ Rs.3,99,009/- 5. 407 of 2006 756 of 1999 822357/ 1.10.1998 Rs.2,05,000/- 6. 408 of 2006 760 of 1998 822370/ 3.10.1998 Rs.3,99,009/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .1999 Rs.3,99,009/- 24. 184 of 2006 2430 of 1998 822372/ 1.12.1998 Rs.3,99,009/- 25. 185 of 2006 1320 of 1999 822358 /01.11.1998 Rs.2,25,000/- 26. 94 of 2006 6199 of 1998 657361/ 16.08.1998 Rs.5,6 5,000/- 27. 95 of 2006 4887 of 1999 657368/ 16.03.1998 Rs.5,6 5,000/- 28. 96 of 2006 4225 of 2001 348809/01.04.2001 Rs.9,567/- 2.The parties in all these appeals are one and the same and hereafter called as their capacity before the trial court. The appellant in all these appeals are the complainant and the respondents herein are the accused before the learned XVII Metropolitan Magistrate, Saidapet, Chennai which was filed for an alleged offence punishable under Section 138 of Negotiable Instruments Act (herein after called as N.I Act). 3.The foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eight documents were marked. On the side of the accused two witnesses were examined and one document was marked. 9.The learned Magistrate upon considering the oral and documentary evidence adduced on either side, acquitted the accused by holding that the subject Cheques were not supported by consideration. 10.I heard Mr.G.Ravikumar, learned counsel for the appellants and Mr.K.R.Rameshkumar, learned counsel for the respondents in all the Criminal Appeals and the documents available on record are perused. 11.It is found that during the pendency of these appeals the 2nd respondent / 2nd accused namely A.Ravi Shankar Prasad died on 13.07.2013 and to that effect memo was filed on the side of the accused and the same was recorded, hence the appeals stand abated as against the deceased 2nd accused. 12.It is appeared further from the memo filed by the respondents that the respondent s company was wound up by an order of this Court made in C.P.No.178 of 2015 dated 29.01.2016 and at present the administration of the company is been taken charge by an Official Liquidator appointed by this Court. 13.The arguments advanced by the Learned Counsel for the appellant are that the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eant for the monetary liability upon the complainant. However, even in the cross examination the accused has not deposed that under some cloudy circumstances, he was constrained to put his signatures. Moreover, admittedly no reply was given to the statutory demand notice issued by the complainant and the accused has not disputed the existence of the Ex-R1 then he is liable to answer and to give explanation as to why Ex-R1 came to light. As a prudent person he ought not to have entered into such an agreement by putting his signature. No doubt when the accused has not denied the execution of Ex-R1 and the contents thereon, then in the considered opinion of this court, he is liable to disprove the case of the complainant as the complainant has shifted the burden to prove the case upon the accused. 16.It is seen form the records that quite numbers of cheques were issued followed by the execution of Ex-R1. Apart from that the transactions are supported by other documents as admitted by either parties. At this juncture, it is relevant to point out here that though the counsel for the accused denied the passing of consideration; he has no answer as to why the statutory demand notice wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in State of Madras vs. A. Vaidyanatha Iyer AIR 1958 SC 61, it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused (ibid). Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court may presume a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l into error without appreciating the total circumstance of the case and the surrounding legal aspect in this regard. 23.Since the learned counsel for the respondents/accused has drawn the attention of this Court in respect of the memo filed to the effect of the death of the Managing Director of the accused company and contented that the liability of the company is absolved. This contention is legally unacceptable as the company represented by the 3rd accused who is one of the Director of the company. It is also relevant to answer here that though the company petition was filed and allowed and the administration of the company is presently with the official liquidator that will not absolve the liability of the company for the reason that the company is represented by the 3rd respondent/3rd accused and the company is also liable to answer the proceedings of the N.I. Act as the company was not in the hands of the liquidator when the cause of action arisen at the time of filing of the complaint. Therefore in the opinion of this court that since the N.I. Act is a self contained law the same will not get diluted simply for the reason of appointing liquidator and the death of the Mana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs.2,00,000/- 12. 414 of 2006 6 Months of S.I. Rs.5,000/- Rs.4,00,000/- 13. 415 of 2006 6 Months of S.I. Rs.5,000/- Rs.2,25,000 /- 14. 415 of 2006 6 Months of S.I. Rs.5,000/- Rs.2,00,000/- 15. 150 of 2006 6 Months of S.I. Rs.5,000/- Rs.2,50,000/- 16. 151 of 2006 6 Months of S.I. Rs.5,000/- Rs.2,00,000/- 17. 152 of 2006 6 Months of S.I. Rs.5,000/- Rs.2,00,000/- 18. 153 of 2006 6 Months of S.I. Rs.5,000/- Rs.2,00,000/- 19. 154 of 2006 6 Months of S.I. Rs.5,000/- Rs.2,00,000/- 20. 155 of 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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