9911796707
TMI Blog2022 (8) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of 2015 affirming the judgement and order dated 08.10.2015 of the learned Judicial Magistrate, 1st Court, Cooch Behar, passed in CR No. 118 of 2011 under Section 138 of the Negotiable Instruments Act. 2. The brief fact of the case is that:- i. The petitioner purchased one car of model Indica Vista Terra TDI III at a consideration price of Rs.3,97,797/- and on payment of token money of Rs. 34,001/- vide cheque no.014188 dated 03.11.2010 the vehicle was delivered to the petitioner. ii. The petitioner issued another cheque bearing no.014189 dated 14.01.2011 amounting to Rs.3,50,000/- drawn on SBI, Dinhata Branch as part payment of the balance amount. iii. The opposite party-complainant presented the said cheque in its bank at SBI Sada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate for the petitioner submits that although the petitioner approached the opposite party-complainant for purchase of vehicle (car) and made payment of Rs.34,001/- but no such vehicle was ever delivered to the petitioner. The cheque in question amounting to Rs. 3,50,000/- was handed over to the opposite party-complainant as a security deposit, nothing more nothing less. He further draws the attention of the Court to the fact that the petitioner has issued several letters to the opposite party-complainant stating to deliver the vehicle and subsequent thereto after the vehicle was not delivered he issued letter intimating the opposite party-complainant of stopping payment in respect of the cheque in question. There is no such legally enforcea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er towards the complainant does not arise at all. 8.1. As far as the first aspect is concerned it is found from the materials on record that the petitioner has not produced any documents namely loan agreement or receipt of the opposite party-complainant during trial showing the cheque in question to have been delivered to the complainant as security. The petitioner in his letters dated 06.02.2011, 23.01.2011 marked Exhibit D, Exhibit D1 respectively and in reply to the demand notice (Exhibit 3/1) has stated that certain documents were handed over to the complainant and finance agreement was signed by him. In his cross-examination he admitted that he did not file any finance agreement in court. It is not the case of the petitioner that copy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any for alleged non-delivery of the vehicle and instead retaining such high value cheque which as per him was issued as security. The petitioner has also not initiated any criminal proceeding or civil litigation against the opposite party-complainant for their alleged illegal activities if any. The opposite party-complainant after such dishonour of cheque sent a demand notice on 09.04.2011 (Exhibit 2) and in the said notice it specified the Chassis no. and Engine no. of the said vehicle. The petitioner has not disputed the specification of the vehicle provided in the demand notice. In order to probabilise that the vehicle was not delivered to him the petitioner could have called for the records and documents from the respective Regional Tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lieve that the debt did not exist or its non-existence was so probable that a prudent man would under the circumstances of the case, shall act upon the plea that it did not exist. As per Section 139 of the Act there is statutory presumption that the holder of a cheque received the cheque for the discharge in whole or in part of any debt or other liability. The presumption mandated by Section 139 of the Act includes a presumption that there existed a legally enforceable debt or liability. It is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate is directed to execute the sentence in accordance with law. Failing compliance as above the learned Magistrate shall take all appropriate measures for execution of the sentence. 10. Accordingly, the present revisional application being CRR no.123 of 2019 stands dismissed on contest. 11. All connected applications, if any, stand disposed of. 12. Interim orders, if any, stand vacated. 13. Urgent Photostat Certified copy of this judgment, if applied for, be supplied to the parties expeditiously after complying with all necessary legal formalities. 14. Let a copy of this judgment alongwith lower court records of the respective courts be sent to the learned trial court for information and necessary action as well as to the Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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