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TMI Blog2021 (6) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... stion towards legally recoverable debt, the presumption under Sections 118 and 139 of the N.I. Act comes into operation. It is for the accused to rebut these presumptions by placing cogent materials in support of his defence. In the present case, even though the accused has taken the defence as stated above, he failed to probabalise the same. It is true that the burden of proof on the accused to rebut the presumption is only of preponderance of probabilities and not proof beyond reasonable doubt - But even then the accused has failed to probabalise his defence and therefore, the complainant is successful in proving the guilt of the accused beyond reasonable doubt. Revision petition dismissed. - Criminal Revision Petition No. 100172/2014 - - - Dated:- 9-4-2021 - M.G. Uma, J. For the Appellant : M.L. Vanti, Advocate for V.M. Sheelvant, Advocate For the Respondents : T. Basavanagouda, Advocate ORDER M.G. Uma, J. 1. The revision petitioner/accused is before this Court impugning the judgment of conviction and order of sentence dated 21.06.2008 passed in Criminal Case No. 878/2004 on the file of the learned Principal Civil Judge (Jr.Dn) and J.M.F.C at Ballari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply to the legal notice, thereby, he has committed the offence punishable under Section 138 of the N.I. Act. 3. The Trial Court took cognizance of the offence and summoned the accused to appear before it by registering the case in Criminal Case No. 878/2004. The accused appeared before the Trial Court and pleaded not guilty and claimed to be tried. The complainant examined himself as P.W.1, examined P.W.2 and 3 and got marked Exs.P.1 to 293 in support of its contentions. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. and examined D.Ws.1 and 2 in support of his defence. The Trial Court after taking into consideration all these materials on record came to the conclusion that the accused is guilty of the offence punishable under Section 138 of the N.I. Act, accordingly, he was convicted and sentenced as stated above. 4. Being aggrieved by the impugned judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred Criminal Appeal No. 131/2018 before the Appellate Court. The Appellate Court after taking into consideration all these materials on record, came to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition and be set aside the impugned judgment of conviction and order of sentence passed by the Trial Court. 10. Per Contra, the learned counsel for the respondent submitted that dealing between the accused and the complainant is an admitted fact. The accused had placed order with the complainant for supply of iron ore fines. Accordingly, the complainant supplied 9825.830 metric tonnes of iron ore fines, which was valued at ₹ 70,59,973/-, out of this amount, the accused paid only ₹ 32,15,000/- and an amount of ₹ 38,44,973/- was still due to be paid. Towards part payment of the said amount, the accused issued the cheque Ex.P.1 dated 16.02.2004 for ₹ 20,00,000/-. But the same was dishonored as there was 'insufficient funds' in the account of accused. Even when the legal notice was issued as per Ex.P.4, the accused has not chosen to repay the cheque amount, thereby, he has committed the offence punishable under Section 138 of the N.I. Act. The learned counsel further submitted that the ledger extract as per Ex.P.9 and invoices as per Exs.P.12 to 290 are produced before the Court, which was never disputed by the accused. The dealing between the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examined P.W.1 before the Trial Court. During cross-examination, it is suggested to the witness that he has not produced any letter of authority to represent the complainant partnership firm. However, P.W.1 stated that he was authorized to represent the complainant-partnership firm and later he produced Ex.P.293, which is the authorization letter issued by all the partners in favour of P.W.1. Therefore, the contention of the learned counsel for the petitioner that the complainant is not represented properly does not hold any water. 15. The next contention raised by the learned counsel for the petitioner is that the complainant had supplied inferior quality of iron ore fines, which has resulted in loss to the accused and he had demanded back the advance amount and also the cheque-Ex.P.1 from the complainant. Therefore, there was no legally recoverable debt due to the complainant. The complainant produced Exs.P.12 to 290 the delivery note-cum-proforma invoices for having supplied various quantities of iron ore fines to the accused. Even the accused admits that the complainant had supplied the iron ore fines as agreed, but the grievance of the accused is that the complainant suppli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Hon'ble Apex Court in M/S. Kalamani Tex and Another vs. P. Balasubramanian in Criminal Appeal No. 123/2021, wherein the Hon'ble Apex Court discussed regarding the proof of commission of the offence punishable under Section 138 of the N.I. Act, the presumption under Sections 118 and 139 of the N.I. Act and held as under: 14. ...........The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these 'reverse onus' clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalised by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106 in the following words: In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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