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TMI Blog2021 (1) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... on the material available on record. It is important to note that based on the complaint, it is the case of the complainant that the accused had raised two invoices for supply of 6000 MTs for shipment of the business transaction and these two invoices are not in existence as admitted by P.W.1 in the cross-examination. However, the complainant relied upon the documents-Exs.P8 to P10. But in the cross-examination, it is categorically admitted that Exs.P8 to P10 bears the date prior to the subject matter of the cheque and also there is contrary evidence as against the contents of the complaint and in the complaint, it is in respect of 6000 MTs. and in the affidavit it is mentioned as 25000 MTs. It is also categorically admitted that Ex.P10 is only a Proforma Sale Invoice. It is also important to note that though P.W.2-R.Kannan was examined and claims that he is having the personal knowledge and giving evidence based on the records. He denies the initiation of other three complaints before the Court. Even he had gone to the extent of denying the three complaints filed against these accused persons at Delhi, so also initiation of arbitration proceedings. It is also important to no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court cannot come to a conclusion that the said cheques are issued in discharge of liability. No doubt, it is settled principle that once the cheque is admitted and not denied the signature; the Court has to draw the presumption. In the case on hand, the accused had rebutted the case of the complainant and even after rebutting the evidence of the complainant, even though, the burden shifts on him but further fails to prove the case of the complainant. The Complainant did not choose to place the material before the Court either the invoices or the statement of accounts. When such being the case, the accused are rebutted the case of the complainant. There are no error committed by the Trial Court in appreciating both oral and documentary evidence and rightly come to the conclusion that the complainant has failed to prove its case. This Court can only reverse the finding of the Trial Court if the findings of the Trial Court is perverse and the material evidence is not considered then to exercise its appellate jurisdiction to reverse the findings and there is no error committed by the Trial Court in appreciating the case of the complainant. Hence, it is not a fit case to rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nds of appeal and also failed to take note of accused Nos.1 and 2 have not entered into the witness box to rebut the evidence of the complainant. The Trial Judge has erred in relying on complaints preferred by the complainant in the arbitration petition and criminal proceedings initiated at Delhi and failed to take note of those matters, which arose with regard to other transactions that had taken place between the complainant and accused Nos.1 and 2. The Trial Judge should have considered only the complaint with regard to the return of cheque. The Trial Judge also has committed an error in holding that the complainant itself was due money to accused No.1 based on a cheque issued in favour of accused No.1 by the complainant-Company. The said cheque was issued to the accused with regard to the other transactions in terms of the MOU dated 10.03.2004. The Trial Judge failed to take note of the fact that P.W.1 was transferred as a result P.W.2 gave the evidence and his evidence is not appreciated in a proper perspective. 7. The learned counsel appearing for the appellant would submit that there was a MOU between the parties to procure the minerals and export the same. In terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heques are issued and notices were also issued against the accused and the accused did not give any reply. 10. The defense relies upon the documents Exs.C.1 and 2 i.e., the complaint filed at Delhi and the same is in respect of different transactions. The accused also relied upon Ex.C.3, the account extract. The Trial Judge after considering both oral and documentary evidence placed on record has not held that the preponderance of probabilities has been made out by the accused and instead of relied upon Ex.C.3 erroneously. The actual documents which have been placed before the Trial Court supports the case of the complainant. In spite the complainant proved the case beyond reasonable doubt, the Trial Judge committed an error. The judgments which the accused relies upon are prior to amendment to Section 138 of the N.I. Act and even though the accused has not prevailed the case and in the MOU there is no any averment with regard to furnishing of the security, the Trial Judge has committed an error in coming to the conclusion that the defense of the accused is probable. 11. The other contention of the learned counsel is that the Trial Court has observed that the very presentatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould submit that in this judgment, the Apex Court held that matters to be established by the accused and bare denial of the passing of the consideration and existence of a debt, is not enough to rebut the presumption. To rebut the statutory presumptions, accused is not expected to prove his defense beyond reasonable doubt as is expected of the complainant in a criminal trial. Rather, something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. The learned counsel referring this judgment would submit that the accused did not choose to enter into the witness box and adduce any evidence and also not brought out any case shifting the burden of proof on the complainant. 15. The learned counsel for the complainant also relied upon the judgment of the Apex Court in the case of M/S. SHREE DANESHWARI TRADERS v. SANJAY JAIN AND ANOTHER passed in Criminal Appeal Nos.61-62/2011 and brought to the notice of this Court paragraph Nos.18 and 19 of the judgment, wherein the Apex Court has held that the courts below erred in not raising the statutory presumption under Section 139 of the N.I. Act that the complainant received the cheques to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned counsel for the accused in support of his contentions mainly relied upon the judgment of the Apex Court in the case of M.S. NARAYANA MENON v. STATE OF KERALA AND OTHERS reported in MANU/SC/2881/2006 and brought to the notice of this Court paragraph Nos.17, 19, 20, 21 and 23 of the judgment. For rebutting the presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. The learned counsel would submit that the standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies. It is not in dispute that transactions comprising purchases and sales of shares by investors are a matter of confidence. Both parties would have to rely upon one another. For the said purpose, the courts of law may also take judicial notice of the practice prevailing in such business. For proving the said transactions, books of accounts maintained by respondent No.2 were found to be not reflecting the correct state of affairs. It was for the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on that they are unable to accept the line of reasoning with regard to correctness of the statement that she had surrendered her estate and was entitled to maintenance only. All the statements in the plaint are, therefore, admissible as evidence. However, the Court is not bound to accept all the statements as correct. The Court may accept some of the statements and reject the rest. The High Court also observed that an admission in a pleading can be used only for the purpose of suit in which the pleading was filed and also distinction between and admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true. The learned counsel referring this judgment would submit that Sections 17 to 21 of the Evidence Act comes to the rescue of the accused in view of the admission given by P.W.1 in the cross-examination and also the answers elicited from the mouth of the witnesses of the Company in Delhi proceedings. 22. The learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court has made an observation that at any rate, the cheque was a post dated cheque and as on the date of issuing of the cheque there was no existing enforceable debt or liability and having regard to these circumstances no offence is constituted under Section 138 of the N.I. Act. 26. The learned counsel relied upon the judgment of the Apex Court in the case of THIRU JOHN AND OTHERS v. RETURNING OFFICER AND OTHERS reported in MANU/SC/0211/1977 and brought to the notice of this Court paragraph Nos.14 to 16. Referring paragraph No.15 the learned counsel would submit that the Apex Court has made an observation that it is well settled that, a party's admission as defined in Sections 17 to 20 fulfilling the requirements of Section 21, Evidence Act, is substantive evidence. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established. 27. The learned counsel relied upon the judgment of the Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections 17 to 21 of the Evidence Act, the admissions takes away the case of the complainant insofar as to gain tradings and admission given by Sri K.K. Mathur when he was subjected to cross-examination. The witness who has been examined before the Court Sri R. Sundararajan also admitted the defence of the accused. 31. Having heard the arguments of the respective learned counsel and also on perusal of the grounds urged in the appeals, the points that would arise for the consideration of this Court are: (i) Whether the Trial Court has committed an error in acquitting the accused for the offence punishable under Section 138 of the N.I. Act? (ii) What order? Point Nos.(i) and (ii): 32. Having heard the respective counsel on behalf of the complainant and the accused and also in keeping the grounds urged in the appeal, this Court has to re-appreciate the material available on record. The present appeal is filed against the order of acquittal. This Court has to re-appreciate the material on record and arrive for a conclusion whether the trial Judge has considered the material available on record or not. This Court also given anxious consideration to the principles l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, he admits that the contents of his affidavit are not tallying with the second paragraph of the complaint. He also admits that in the affidavit of Sundararajan, there was no reference of 25000 MTs. He admits that he has not produced any statement of accounts to show that accused- Company is due to the complainant-Company to the tune of ₹ 2,50,00,000/-. He says invoice shows the same. He admits that Exs.P8 to P10 bears the dates prior to the disputed cheque. He admits that in the complaint in paragraph No.2, it is mentioned as 6000 MTs and in his affidavit, it is mentioned as 25000 MTs. He admits that Ex.P10 is the Proforma Sale Invoice. He admits that after sending Ex.P10 to the accused, he has not produced the reference of the said invoice in this case. He admits that his advocate has prepared the chief-examination by way of affidavit. It is suggested that the complaints filed at Bengaluru and Delhi and Arbitration Petition were pending before Justice Sharada Agarwal are also connected to this transaction and the same was denied. He admits that invoices, which are referred in paragraph No.2 of the complaint, are not in existence. It is suggested that after Ex.P10, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claims that he is having the personal knowledge and giving evidence based on the records. He denies the initiation of other three complaints before the Court. Even he had gone to the extent of denying the three complaints filed against these accused persons at Delhi, so also initiation of arbitration proceedings. 36. I have already pointed out that two invoices, which are referred in the complaint are not produced before this Court and subsequently relied upon the documents-Exs.P8 to P10 and without any pleading in the complaint, the documents-Exs.P8 to P10 are introduced during the course of examining this witness. It is also important to note that this witness is not having the personal knowledge. Only he claims that he was getting the report when he was working at Chennai and having the personal knowledge. He then denies the initiation of proceedings against the accused at Delhi as well as at Bengaluru, this witness cannot be termed as having personal knowledge with regard to the transaction. It is also important to note that Ex.P10, which has been relied upon by the complainant is only a Proforma Sale Invoice and legal notice claim is in respect of two invoices for about 600 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of supply of 25000 MTs. iron ore. The complainant is not sure about whether it is for the supply of 6000 MTs. iron ore or towards supply of 25000 MTs. iron ore and also the invoices which have been pleaded in paragraph No.2 of the complaint have not been placed before the Court. It is also important to note that, P.W.2, who has been examined subsequently, is not aware of the transaction between the complainant and the accused in toto and he is not aware of any proceedings initiated by the accused in Delhi as well as in Bengaluru. It is also pertinent to note that the complainant being a Central Government Undertaking has not maintained any account with regard to the transaction and produced the same before the Court. There must be a proof with regard to ascertaining the liability of the accused. In the absence of said statement of account before the Court, the Court cannot come to the conclusion that the cheques are issued towards the debt or liability. It is also important to note that P.W.2 categorically admits that Ex.P10 was only a Proforma Sale Invoice was raised. When such being the case, in the absence of relevant documents before the Court, the Court cannot come ..... X X X X Extracts X X X X X X X X Extracts X X X X
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