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TMI Blog2022 (3) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 14.01.2016 drawn on Citibank, NA Branch on the account of the accused for sum of Rs.48,68,400/-. The cheque was presented through the account of the complainant in HDFC Bank Ltd. Richmond Road, Bengaluru. The cheque was returned with banker's memo as per Ex.P3 dated 19.01.2016 with endorsement 'account closed'. 5. The complainant got issued statutory notice as per Ex.P4 dated 27.01.2016 to the accused claiming that the cheque was issued towards discharge of legal liability and that was dishonoured. Under the notice, the complainant called upon the accused to pay the cheque amount within 15 days or to face the prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). 6. The accused replied to the said notice as per Ex.P6 dated 06.02.2016 denying the transaction, liability or issuance of the cheque. Therefore the complainant filed the complaint as per Ex.P7 before the trial Court seeking prosecution of the accused for the offence punishable under Section 138 of the Act. 7. On taking cognizance, the trial Court registered the said case in C.C.No.5665/2016, summoned the accused and conducted the trial. After such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed was that the authorization to file the complaint and to give evidence was not proved. Due to bona fide error, the Resolution of the Board of Directors and the complainant authorizing Smt.Thanuja the Chief Executive Officer of the bank to delegate the powers to her sub-ordinate to sue any person on behalf of the company and to conduct the case was not produced. Now the same is produced before this Court by filing application under Section 391 of Cr.P.C. Having regard to the fact that the appellant is Cooperative society and public money is involved, the complainant shall not be thrown out of Court on technical grounds. Therefore the said additional evidence may be received. 12. In support of his submissions, he relies on the following judgments: 1. Mr. N. Srinivasa Murthy & Ors. v. State of Karnataka & Anr. [Crl.P.No.2314/2016 DD 06.02.2019] 2. APS Forex Services Pvt. Ltd. v. Shakti International Fashion Linkers [AIR 2021 SC 2814] 3. Sripati Singh v. The State Of Jharkhand [2021 SCC Online SC 1002] 4. D. K. Chandel v. M/s. Wockhardt Ltd. [Crl.A.No.132/2020 DD 20.01.2020] 5. Bir Singh v. Mukesh Kumar [(2019) 4 SCC 197] 6. Uttam Ram v. Devinder Singh Hudan [201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch presumption by the evidence of complainant himself without leading his own evidence. (v) Once the presumption is rebutted the burden reverses to the complainant to prove the fact that the cheque was issued for discharge of legally recoverable debt or liability. (vi) Whenever the accused has questioned the financial capacity of the complainant in support of his probable defence, despite the presumption under Section 139 of the N.I. Act about the presumption of legally enforceable debt and such presumption is rebuttable, thereafter the onus shifts again on the complainant to prove his financial capacity and at that stage the complainant is required to lead the evidence to prove his financial capacity, more particularly when it is a case of giving loan by cash and thereafter issuance of a cheque. 16. In the light of the aforesaid legal propositions, it has to be examined whether the accused rebutted the presumption and the complainant discharged the reverse onus. 17. In the complaint, statutory notice and in the evidence of PW.1, it was stated that the accused borrowed property loan of Rs.50,00,000/- in April 2014 in the loan account Nos.19/2014 and 25/2014 and committed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court. That order has attained finality. Thereby the defence that cheque was issued for earlier transactions and misusing that the accused was falsely implicated in the case and the loan documents are fabricated etc. have no legs to stand. 23. Even the trial Court accepted that the cheque was issued in loan transaction of Rs.50,00,000/-. However, it held that loan was repayable from 2014 till 2024 and that had not become overdue, therefore presentation of the cheque was prematured and it cannot be said that then the loan was legally recoverable. 24. The complainant claims that the accused committed default in payment of the loan. It was not the case of the accused himself that the loan was prematurely recalled or that was not due as on the date of the issuance of the cheque or presentation of the cheque as the case was denial of availment of loan itself. However, the Court itself made out the case of such premature recalling of the loan to the accused. It was not the defence of the accused that the he had paid installments which had fallen due. On admitting the cheque, the accused has to probabilise the defence and to establish that. It was not the case of the accused that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complainant party to file the complaints found in Exs.P14 to P17. In those cases, cognizance was taken against the accused and his family members. By filing the complaint against the complainant party, the accused entrapped them into criminal proceedings which were quashed by this Court as aforesaid. 31. Having regard to the aforesaid facts and circumstances, this Court finds it necessary in the interest of justice to permit the complainant to adduce additional evidence. At the same time, the accused/respondent shall have opportunity to meet those documents with regard to his contentions that those documents are concocted one. That exercise can be done by remanding the matter to the trial Court to record the evidence regarding the documents sought to be produced before this Court and give findings only with regard to maintainability of the complaint for want of authorization. Therefore the following: ORDER I.A. No. 1/2020 is allowed and the appeal is partly allowed. The appellant/complainant has proved that the accused has committed the offence punishable under Section 138 of the Act. The trial Court shall record the evidence regarding additional documents produced bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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