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TMI Blog2018 (10) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: (i). The first accused/1st respondent is a Private Limited Company. The second and third accused are the Managing Director and the Director of the first accused company respectively. Admittedly, the second accused is the authorized signatory of the first accused company. Further, he is actively participating in the day to day affairs of the said company. On 26.12.2005, the second accused/2nd respondent approached the complainant/petitioner herein for financial assistance and he borrowed a sum of Rs. 25,00,000/- from the complainant. In order to discharge the above said loan, he issued a cheque dated 05.04.2006 drawn on City Bank N.A., Mumbai bearing serial Nos.833509 000037000, 309540 for the said sum. At the time of issuing the che ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused denied the same as false. Subsequent to that the second accused examined himself as DW.1 and marked Ex.X1 to Ex.X4. 4. Having considered the evidence and the documents on record, the learned Judicial Magistrate No.II Namakkal found the accused guilty under Section 138 of N.I. Act, he convicted the accused and sentenced them to undergo 1 year Simple Imprisonment. 5. Aggrieved over the Judgment passed by the trial court, all the accused preferred an appeal before the Principal Sessions Judge, Namakkal/First Appellate Court in Criminal Appeal No.66 of 2009. After elaborate enquiry, the learned Principal Sessions Judge, Namakkal set aside the order of conviction and sentence imposed upon the accused and allowed the appeal. 6. Havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esent criminal appeal, the learned counsel appearing for the appellant submitted that since the signature found in the cheque was admitted by the accused, it is his duty cast upon the respondent to put forth a probable defence for rebutting the presumption. 10. In this regard, in the trial Court, the accused took a stand that the cheque under dispute was stolen away from the accused company. It is the submission of the learned counsel for the respondents that in the trial court, it was pointed out that the said defence was proved by showing the copy of the complaint lodged before Police Station with regard to the theft of cheque. 11. Further, the learned counsel appearing for the respondent/accused had relied on the judgment reported in 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court to see other facts involved in this case, to arrive at a conclusion. It is an admitted fact that in 2003 itself, the bank authorities who have lent the loan to the accused company issued a notice under Section 132 of SARFAESI Act for taking symbolic possession. But, as per the case of the complainant, only in the year 2006, the loan of Rs. 25,00,000/- was given to the accused. No doubt, the amount of Rs,25,00,000/- is not a small amount. The accused and complainant did not have any business relationship prior to the present one. Furthermore, the complainant was doing his business in Namakkal District. On the other hand, the accused was running a company in Mumbai. In the said circumstances, it is unbelievable that any prudent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be either by direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the accused is entitled under law to rely upon the evidence led in the case including that of the complainant as well. 43. In case, where the accused fails to discharge initial onus of proof by showing the non-existence of the consideration, the complainant would invariably be held entitled to the benefit of presumption arising under Section 118(a) of the Act in his favour. The Court may not insist upon the accused to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a document evidencing such payment. But the complainant had failed to get such document. The complainant had not explained as to why such document was not obtained from the accused." 17. The observations laid in the above said judgments of the Hon'ble Apex Court are also squarely applicable to the facts of present case. 18. It is obligatory on the Court to raise the presumption in every where all the factual aspects have been established. In the present case, the facts as shown above clearly reveal that the complainant has miserably failed to prove his case beyond all reasonable doubt. 19. Hence, this Court comes to the conclusion that the judgement rendered by the First Appellate Court on the above fact is justified and there is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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