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TMI Blog2010 (5) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... t (for short 'the Act'). 2. The appellant filed private complaint under Section 200 of Code of Criminal Procedure alleging offence punishable under Section 138 of the Act against the respondent herein and one K.R. Vijaya Kumar, inter-alia alleging that the accused are the partners of Chandana Finance Corporation, a registered Firm of partners; they borrowed a sum of Rs. 1,30,000/- from him as hand loan promising to repay the same within two months; for repayment of the said loan amount they issued cheque bearing No. 11479 dated 6.3.1995 drawn on Merchants Co-operative Bank, Chitradurga; when the said cheque was presented for encashment, the same was returned unpaid for want of sufficient amount in the account; in spite of service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also his defence that he ceased to be the partner of Chandana Finance Corporation with effect from 8.8.1994 itself therefore there was no occasion for him to borrow the loan for the purpose of the firm along with K. R. Vijaya Kumar as such, the whole case of the complainant that the amount was borrowed for the purpose of the firm is false and concocted. 5. During the trial, the disputed cheque was referred to a hand writing expert for examination and report. After examination, the hand writing expert submitted report opining that the signature found in the cheque and the admitted signature of the respondent-accused tallies with each other and both the disputed and admitted signatures are made by one and the same person. The hand writin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent and another were partners of the firm called Chandana Finance Corporation and they borrowed a sum of Rs. 1,30,000/-from him and for discharge of the amount, the cheque in question was issued. No doubt, the respondent disputed the purported signature appearing on the cheque marked as Ex.P.1. However, the Court below on the basis of the report of the hand writing expert has recorded a finding that the said defence cannot be accepted. The respondent has not seriously disputed the said finding recorded by the Court below. Therefore, the evidence on record indicates that the cheque in question-Ex.P.1 bears the signature of respondent-accused and another K. R. Vijaya Kumar claiming to be the Managing Directors of Chandana Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 of the Act, there is presumption that whenever a Negotiable Instrument is made or drawn it is so drawn or made for consideration. As per Clause (b) of Section 118 of the Act whenever a Negotiable Instrument bears a date, it shall be presumed that it was so made or drawn on such date. This Court in the case of Shivamurthy v. Amruthraj reported in ILR 2008 Kar 4629 : 2008 (6) AIR Kar R 432 has held that by combined effect of reading of Clauses (a) and (b) of Section 118 of the Act would be whenever a Negotiable Instrument bears a date it has to be presumed that it has been so made or drawn on such date and for consideration. It has been further held in the said decision that if in a given case the specific case of the complainant is that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no other document evidencing advancement of loan of Rs. 1,30,000/-. It is highly difficult to believe that a businessman like the complainant who claims to be a flower vendor and an exporter of flowers, would advance a substantial amount of Rs. 1,30,000/- without taking any document to evidence such transaction. 11. Section 269(ss) of the Income Tax Act directs that any monetary transaction involving Rs. 20,000/-and above shall be by means of an account payee cheque. According to the complainant the loan amount was paid in cash. Thus there is violation of provisions of Section 269(ss) of the Income Tax Act. In addition to this, the complainant has not placed any evidence to indicate that he had financial capacity to advance substantial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated to the Registrar of Firms as required by law. Therefore legally it has to be presumed that the respondent continued as partner of the firm. Nevertheless this document would probabilise the contention of the respondent-accused that he ceased to be the partner of the firm from the date of August 1994 itself and therefore there was no occasion for him to borrow any money from the complainant. The Court below accepting the defence theory has held that the complainant has failed to prove the guilt of the accused. To satisfy myself about the correctness of the judgment passed by the Court below, I have scanned the evidence placed on record. I am convinced that the Court below has properly appreciated the evidence. The judgment of the Court b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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