9911796707
TMI Blog2021 (11) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent No.1 herein had borrowed an amount of Rs. 4,00,000/- from the appellant and in discharge of repayment of the said legal debt the respondent No.1 had issued a cheque bearing No.106953 dated 20.06.2006 for Rs. 4,00,000/- drawn on HDFC Bank, Ponda Branch in favour of the appellant. When the cheque was presented by the appellant before his bankers, namely Bicholim Urban Co-operative Bank Ltd., Ponda branch it returned unpaid with the remark "Account closed". The appellant, therefore, issued a registered AD notice dated 23.06.2006 to the respondent No.1 informing him that the cheque issued by him has been dishonored and called upon him to pay the cheque amount within 15 days. Though the respondent No.1 received the notice, he failed to reply and pay the amount and, as such, the appellant filed complaint under Section 138 of the Negotiable Instruments Act. 3. Process under section138 of N.I. Act was issued to the respondent No.1. As the respondent No.1 pleaded not guilty, was ordered to face trial. The appellant to prove his case examined himself as PW1 who placed on record the cheque dated 20/06/2006, cheque return memo, forwarding letter and legal notice and on the strength ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 138 and the handwriting in the body of cheque would not be of much significance. Respondent no.1 admitted his signature on the cheque, bank statement and on the receipt of amount, duly established that amount of Rs. 4 lakh was advanced to the respondent no.1. The Appellate Court has erroneously dealt with the aspect of deposit of such amount and the withdrawal of the same on the same day, which was neither relevant nor necessary in the facts and circumstances of the case. The Appellate Court has given undue weightage to the issue of amount not being reflected in the income tax returns. Non-reflection of such amount in the income tax returns is not fatal to the case of the appellant. Though Appellate Court disbelieved the defence of the respondent no.1, which on the face of it suggested that an attempt was made by the respondent no. 1 to deny a legal right of the appellant. In such circumstances, the Appellate Court ought not to have interfered with the judgment and order of the learned JMFC. The finding of the Appellate Court that appellant is a moneylender is neither sufficient in terms of law nor do the finding of the Appellate Court refer to the ingredients for making a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... business. The defence of the accused is that complainant obtained the disputed cheque from the accused in order to given him loan of Rs. 40lakhs (Rupees Forty lakhs) as margin of Rs. 4 lakh and neither returned the cheque nor gave any loan. Instead, that he misused the said cheque for filing complaint. It needs to be noted here that the Appellate Court also disbelieved the defence raised by the accused that the accused handed over an amount of Rs. 4 lakh to the complainant and the same was not returned. If the defence of the accused is disbelieved, the learned Appellate Court ought not to have disturbed the finding of the learned Trial Court. The learned Trial Court rightly appreciated the fact that if the complainant has not returned the amount of Rs. 4 lakh of the accused and has not even given the finance that was required, no prudent person would have waited without taking any action. It is admitted fact that he neither responded to the notice nor filed any complaint or taken any action against the complainant herein. The accused failed to substantiate wherefrom he brought the amount of Rs. 4 lakhs. As against this, the complainant through his passbook substantiated withdrawal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal liability under Section 138 of NI Act. 14. It is vehemently argued by the learned Advocate Shri Agni that the amount was deposited by the complainant in cash and withdrawn on the same day. He could have paid the accused in cash and therefore cash amount that was deposited is given by the accused as margin money and it is not of the complainant. However, in my considered opinion the accused failed to disclose the source of Rs. 4lakhs as well as such payment and, therefore, this argument is having no substance. 15. So far as not showing the amount in income tax returns is concerned, considering the other evidence on record, it does not rebut the statutory presumption available to the complainant. This amount is very much due from the accused to the complainant and the accused has admittedly signed the cheque. The cheque has to be considered as issued towards legally enforceable debt given by the accused to the complainant. Even evidence of accused is not sufficient to meet the standards of preponderance of probabilities. Even if the execution of cheque is admitted, section 139 of the Act mandates the presumption that the cheque was for the discharge of any debt or other liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that probable defences are made out by the accused. Similarly, in Mrs. Mercy Salve v/s. Cyril Arland & Ors. (supra), there was reply notice issued by the respondent and he denied the claims made by the complainant in a statutory notice but defence of the respondent accused was clearly indicated in the reply notice. Despite the respondent calling upon the appellant/complainant not to deposit the remaining two cheques, complainant went ahead to deposit the same. It is admitted fact in the said matter that accused raised objection in respect of the receipt and signature on the same. In the matter before me, the accused has admitted signature on the cheque as well as on the receipt. 19. Thus, there is no dispute with the principle laid down in the above citations. However, they are differentiable on facts and are of no help to the respondent. In my considered opinion the judgment and order passed by the learned JMFC is well founded and the conclusions arrived at are on proper appreciation of evidence. As such, the order passed by the learned Appellate Court is liable to be set aside. Accordingly, I pass the following order: O R D E R a) The Appeal is allowed. b) The judgment an ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
