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TMI Blog2022 (7) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ption, it is sufficient if the accused rebut the presumption by preponderance of probability. In this case, the accused through the agreement dated 22/08/2007 entered between him and the complainant has established that the money alleged to have been paid by the complainant was towards the screening right of the film THE HOST and for the 10% commission, it is not a loan as alleged in the complaint. The Trial Court for reasons recorded, had held that the alleged letter of guarantee dated 09/09/2007 is shrouded with suspicious and the witnesses contradictory version about its execution render this document unreliable. Shockingly, the Appellate Court has not even examined the documents but mechanically held that the accused is guilty of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only one lakh and got back one cheque. The remaining cheques when presented for collection, same got bounced. Hence after statutory notice, private complaint under section 138 of Negotiable Instruments Act, 1881 filed and numbered as S.T.C.No.219/2009 on the file of Judicial Magistrate No.II, Salem, for dishonouring cheque bearing No.LKB 008682 dated 20/11/2007 for Rs.1,00,000/- and S.T.C.No.218 of 2009 filed for dishonour of two cheques bearing Nos.008683 dated 20/12/2007 and 008684 dated 20/01/2008 each for Rs.1,00,000/-. 3. The accused took a defence that, the alleged transaction is not true. The complainant had misused the cheques left in the office of ARK Films Distributors which shares common office with the accused at Salem. In fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose, the Trial Court has analysed the Agreement Ex.D-1 dated 22/08/2007 entered between the accused and the complainant and the guarantee letter dated 09/09/2007. 7. The agreement dated 22/08/2007 was marked during the cross examination of the complainant (P.W-1). He had admitted it as true and valid. The recital of the agreement says the accused is the distribution right holder for the movie THE HOST for Salem, Dharmpuri, Nammakal and Krishnagiri Districts. The right to screen conveyed to the complainant for consideration of Rs.5,70,000/-. Five polyester prints of the movie and 5 trailer prints handed over to the complainant. The complainant has agreed to pay 10% commission as per the trade practise and both the parties have agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the defence nor in the complaint. In S.T.C.No.219/2009, 2 out of 3 witnesses to the document dated 09/09/2007 were examined. One Mr.Sekar, the third signatory to the document dated 09/09/2007, admits in his cross examination that, the subject cheques were obtained from the accused after there was dispute between the accused and the complainant. He does not remember the date on which the accused gave the cheques. He signed this document on 20/10/2007. Therefore, considering these contradictions in the depositions of the witnesses and the documents relied upon, the Trial Court dismissed both the complaints. 9. Aggrieved by that, the complainant preferred appeals, C.A.No.121/2012 against S.T.C.No.218/2009 and C.A.No.122/2012 against S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were one and the same and most of the documents are common in both the cases. 13. For the said reason, common order is passed. 14. The Learned Counsel for the revision petitioners/accused submitted that the Appellate Court judgment is perverse on many counts. The Appellant Court while reversing the well consider judgment of the Trial Court, without proper appreciation of fact and law, had held the appellant guilty of offence under Section 138 of the Negotiable Instruments Act, 1881, by saying the accused failed to discharge the burden of presumption under Section 139 of the Negotiable Instruments Act. While the Trial Court held that the letter of guarantee dated 09/09/2007 is not a genuine document and assigned valuable reason for s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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