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TMI Blog2020 (9) TMI 592X X X X Extracts X X X X X X X X Extracts X X X X ..... ot possible for any transaction of liquor to be done in the absence of invoices more so since liquor is an excisable commodity, under the Central Excise Act, any item of liquor sold would have to be accompanied by invoices, the fact that despite the petitioner having been put on notice as regards production of the invoices even duplicate/Xerox, the petitioner has chosen not to produce them would establish that there is no transaction in respect of this particular amount relatable to liquor as contended by the petitioner - Thus, it cannot be contended that the cheque has been issued in discharge of a legally valid debt by the respondents to the petitioner. There is no legal infirmity in the order passed by the First Appellate Court requiring any interference by this Court - Appeal dismissed - decided against appellant. - Criminal Appeal No. 2556/2011 - - - Dated:- 3-2-2020 - Suraj Govindaraj, J. For the Appellant : Y. Lakshmikanth Reddy and Malathi Reddy, Advs. For the Respondents : H.R. Deshpande, Adv. ORDER SURAJ GOVINDARAJ, J. 1. The present appeal has been filed aggrieved by the judgment dated 12.11.2010 passed by the Addl. Sessions Judge, Bellar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof. 5. The trial Court held the respondents guilty of the offences, respondent Nos. 1 to 4 were directed to make payment of fine of ₹ 11,35,000. Out of the said fine an amount of ₹ 11,30,000/- was directed to be paid to the complainant as compensation. In default of the above payment the Court directed the accused to undergo simple imprisonment for six months. 6. Aggrieved by the said judgment of the trial Court, the respondents herein preferred an appeal under Section 374 of Cr.P.C., before the Addl. Sessions Judge, Bellari in Criminal Appeal No. 28/2009. 7. In the said appeal, it was contended that the trial Court has not taken into consideration the fact that the petitioner has not been able to establish any legally valid debt due and liable to be paid. Though there are business transactions, it was for the complainant to produce the documents to establish legally valid debt due and liable to be paid. The same was countered by the petitioner on the ground that issuance of the cheque itself establishes the amount is liable to be paid by the respondents, if not for the amounts being due the respondents would not have issued any cheque to the petitioner. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other liability, the highlighted words if read with the first three words at the commencement of Section 138, leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This aspect of the matter has not been appreciated by the High Court, neither been dealt with or even referred to in the impugned judgment . 11. Relying on the said extract Smt. Malathi Reddy, learned counsel submits that the fact of dishonor of the cheque ought to have been sufficient for the First Appellate Court not to interfere with the well reasoned judgment of the trial Court. 12. Per contra, Sri H.R. Deshpande, learned counsel submits that from the very beginning the respondents have disputed that there is any amounts due on the part of the respondents to the petitioner. He contends that immediately on receipt of Ex. P4, legal notice, Ex. P5 to P8 reply notices were issued wherein the respondents had categorically called upon the petitioner to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely. 25.4. That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden. 25.5. It is not necessary for the accused to come in the witness box to support his defence. 14. On the basis of the above summarization by the Apex Court, Sri H.R. Deshpande, learned counsel contends that the presumption under Section 139 was rebuttable. The rebuttal in this case was done by the respondents by way of legal notice as also by way of cross-examination where under the respondents have called upon the petitioner to establish the liability on the part of the respondents by having denied the same and also by stating that they had issued blank cheque which had been misused by the petitioner. 15. The said presumption having been rebutted and the Rule of evidence applicable to the said rebuttal being preponderance of probability, it was for the petitioner-complainant to prove his case beyond reasonable doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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