9911796707
TMI Blog2021 (2) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... first bus bearing registration No. DL1 P 7279 has been discharged. The purpose of introducing Section 138 of the N.I. Act was to bring sanctity in commercial transactions. Two courts below have looked into the entire records of the case and have come to the conclusion that the cheques have been given in discharge of debt. The petitioner only seeks to take advantage of the fact that the respondent did not produce the books of accounts to rebut the initial presumption which was for the petitioner to show that the amount of loan taken by him and the amount that should be repaid in order to discharge the initial burden and the petitioner has failed to discharge the initial onus of proof. The learned counsel for the petitioner has not been able to demonstrate that the findings of the courts below are perverse. The fact that the respondent did not file the books of accounts is not fatal to the case of the respondent. It was open to the petitioner to produce his books of accounts to rebut the presumption and bring out a prima facie case that there was no debt due and payable on the date the cheques were dishonoured. The petitioner has not been able to discharge the initial burden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the N.I. Act was issued by the respondent calling upon the petitioner herein to make the payment within 15 days of receipt of the notice. The payment was not received and a complaint was filed under Section 138 of the N.I. Act before the court of the Metropolitan Magistrate, West District, Tis Hazari Court, Delhi. d) Before the Metropolitan Magistrate it was contended by the petitioner herein that he took a loan for purchasing a bus with registration number DL1 PA 5798 and at the time of taking the loan 36 blank signed cheques were given as security towards the repayment of the loan. It is stated that in October, 2002 the petitioner herein handed over the vehicle to the respondent company for getting the vehicle converted to CNG and entered into a new lease agreement, but neither was the said vehicle returned to the petitioner herein nor were the accounts related to the hire purchase agreement settled. It was stated before the Metropolitan Magistrate that as the vehicle is in the possession of the respondent herein and the cheque given by the petitioner/accused had been misused. e) It was stated before the Metropolitan Magistrate that the bus No.DL1 PA 5798 was re-posse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osed by him that for the other bus, payments were made to some other company. Therefore the AR of the Complainant has clearly deposed that payments were made to MGF India Limited on the behalf of the accused for bus bearing No DL1P7279. j) The Metropolitan Magistrate also found that the contention of the accused/petitioner herein that no payments were made to the MGF Ltd. Company were also not correct. k) The Metropolitan Magistrate therefore held that the accused/petitioner herein has not been able to rebut the presumption that the cheques had been paid for discharge of any liability. l) The Metropolitan Magistrate by an order dated 26.04.2018 convicted the petitioner herein for offences under Section 138 of the N.I. Act. m) The above said judgment was challenged before the Additional Session Judge in CA No. 153/2018. After going through the records the Additional Session Judge upheld the judgment dated 02.07.2018 passed by the Metropolitan Magistrate, (N.I. ACT) West District, Tis Hazari Courts, Delhi in CC No.8073/2016 convicting the petitioner and also the order on sentence dated 12.07.2018, passed by the Metropolitan Magistrate, (N.I. ACT) West District, Ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ixit of the petitioner that there was no debt due and payable nothing is on record to show that the cheques were not issued for discharge of liability for the bus. The second bus bearing registration No. DL 1 PA 5798 stood in the name of the accused. There is nothing to show that the liability for the first bus bearing registration No. DL1 P 7279 has been discharged. 10. The purpose of introducing Section 138 of the N.I. Act was to bring sanctity in commercial transactions. 11. In Dalmia Cement (Bharat) Ltd. v. Galaxy Traders Agencies Ltd., reported as (2001) 6 SCC 463, the Supreme Court observed as under: 3. The Act was enacted and Section 138 thereof incorporated with a specified object of making a special provision by incorporating a strict liability so far as the cheque, a negotiable instrument, is concerned. The law relating to negotiable instruments is the law of commercial world legislated to facilitate the activities in trade and commerce making provision of giving sanctity to the instruments of credit which could be deemed to be convertible into money and easily passable from one person to another. In the absence of such instruments, including a cheque, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the courts below recorded the concurrent findings of fact, in our view, the High Court was not right in interfering with the concurrent findings of fact arrived at by the courts below and the impugned order cannot be sustained. (emphasis supplied) In State of Haryana v. Rajmal, reported as (2011) 14 SCC 326, the Supreme Court observed as under: 14. In State of A.P. v. Pituhuk Sreeinvanasa Rao [(2000) 9 SCC 537 : 2001 SCC (Cri) 642] this Court held that the exercise of the revisional jurisdiction of the High Court in upsetting the concurrent finding of the facts cannot be accepted when it was without any reference to the evidence on record or to the finding entered by the trial court and the appellate court regarding the evidence in view of the fact that revisional jurisdiction is basically supervisory in nature. It has been also held by this Court in Amar Chand Agarwalla v. Shanti Bose [(1973) 4 SCC 10 : 1973 SCC (Cri) 651 : AIR 1973 SC 799] that the revisional jurisdiction of the High Court under Section 439 CrPC is to be exercised, only in an exceptional case, when there is a glaring defect in the procedure or there is a manifest error on a point of law resulting ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
