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TMI Blog2023 (8) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the complainant to return his blank signed cheques nor he had lodged any complaint in this regard with the police or any other department. It is also a matter of record that the complainant had presented the cheques for encashment not only once but twice, however, the petitioner had even then neither approached or contacted the complainant, nor he had given any reply to the legal notice sent by her despite having received the same - the defence raised by the petitioner that the cheques were not issued toward a legally enforceable debt did not hold any ground. As far as the other contention that income tax officer had informed the Court that income tax returns of the complainant for several years in between were not available with them is concerned, it is to be noted that the officer concerned had informed the Court that the department was not able to procure the required documents despite best efforts as the voluminous records had got mixed up due to shifting of their offices. Further, as regards the argument that the complainant was not financially strong so as to have advanced any loan to the petitioner, the complainant had stated that for the grant of first loan to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that she and the petitioner were known to each other for more than nine years and there were friendly relations between their families for more than twenty two years as on the date of filing of the complaint. It was alleged that in July 2006, the accused/petitioner had approached the complainant on pretext that he was going through a tough time financially and he had come up with a lucrative business proposal for the complainant and had convinced her to finance a project which would yield handsome profits to her, for which he had sought a loan of Rs. 14 lakhs from her. The complainant had accordingly agreed to advance a loan of Rs. 14 lakhs to the petitioner on payment of interest at the rate of 3% per month. It was stated by the complainant that the petitioner was regular in paying interest on loan amount and he had again approached her in the month of August, 2007 for another loan and the complainant after considering his past conduct, had agreed to advance the second loan amount to him by selling of her jewellery, thereby giving another loan of Rs. 14 lakhs to the petitioner on same rate of interest. It was averred that to liquidate the liability of Rs. 28 lakhs, the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n question were drawn on his bank account and bore his signatures. He also admitted having received the legal notice from the complainant. In the defence evidence, the petitioner also examined himself as DW-1 and contended that the cheques in question were issued somewhere between January to April 2010 as the complainant and her family members were in great financial difficulties and they had lost all financial credibility in the market, and he had issued the cheques to enable them to procure loans by showing his blank cheque as security and to show their financial soundness to the potential creditors. The petitioner also contended that the complainant did not have financial competence to give him any loan. The petitioner had also examined an official from Income Tax Office who had stated that income tax returns which were summoned by the Court could not be produced as they were not traceable despite best efforts of the department. 6. After hearing the final arguments and appreciating the evidence on record, the petitioner herein was convicted under Section 138 of NI Act by virtue of judgement dated 23.03.2015, the operative portion of which reads as under: ...Summing up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l undergo a further simple imprisonment for three months... 8. Aggrieved by the decision of learned MM, the petitioner had preferred an appeal before the learned ASJ, who was pleased to dismiss the appeal, thereby upholding the judgment and order on sentence passed by the learned MM. The concluding portion of impugned judgment dated 26.05.2018 passed by learned ASJ reads as under: 32. For the foregoing reasons, I am of the view that impugned judgment dated 23.03.2015 does not suffer from any illegality which calls for interference. I accordingly uphold the impugned judgment dated 23.05.2015 vide which appellant was convicted for the offence punishable under section 138 of the NI Act. 33. I also uphold that impugned order on sentence dated 25.03.2015. The substantive sentence awarded to the appellant cannot be said to be on higher side, it is in fact on lower side, I do not find any ground for . reducing it. Appellant is directed to surrender before the Ld. Trial Court. If does not do so, the Id. that counsel shall take steps to procure his presence and commit him imprisonment to undergo the sentence awarded to him. The balance fine shall be paid by appellant with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had failed to examine her mother-in-law to prove that she had obtained a loan of Rs. 6.35 lakhs from her mother-in-law which she had used to advance loan to the petitioner for the first time. It is also stated that she had failed to examine Sh. Jasveer Singh and Sh. Chiddha Singh who were the alleged purchasers of her jewellery and thus, she was unable to prove the factum of having advanced a second loan to the petitioner. In a nutshell, it is the case of petitioner that both the Courts below have not appreciated the evidence in the correct manner and there are several contradictions in the case set out by the complainant in her legal notice, complaint under Section 138 of NI Act, and in her evidence during the trial. Thus, it is prayed that impugned judgment be set aside and petitioner be acquitted in the present case. 11. On the other hand, learned counsel for respondent no. 1/complainant submits that the learned MM and the learned ASJ have passed comprehensive judgments covering each and every aspect of the defence of petitioner and after thoroughly examining the evidence on record, they have rightly convicted the petitioner for offence under Section 138 of NI Act. As rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dvanced any loan to the petitioner as she did not furnish any specific details and particulars qua the same; iv. the complainant had no financial capacity to advance loans to the petitioner and the evidence adduced by her was insufficient to prove to the contrary; v. the evidence brought on record by complainant to prove grant of first loan after obtaining the same from her mother-in-law and grant of second loan after selling her jewellery was insufficient and inconsistent owing to several discrepancies, non-examination of relevant witnesses, etc; 15. Having perused the trial court record and the judgments passed by both the learned MM and learned ASJ, this Court is of the opinion that both the Courts have already dealt with the aforesaid contentions of the petitioner in detail and have returned their findings on the same. 16. With regard to the contention that cheques in question were blank signed cheques and the details on the same had been filled by the complainant, this Court notes that it was not even the case of complainant that she had not filled some of the details on the cheques. It was, in fact, stated by the complainant herself that petitioner had han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of any cogent evidence to show that the cheque was not issued in discharge of a debt. (Emphasis supplied) 17. Furthermore, as rightly held by the learned MM, when the signatures on the cheques had been admitted by the petitioner, the presumption under Section 118(a) and 139 of NI Act would arise and it would be presumed that the cheques in question had been issued by the petitioner towards some legally enforceable debt. However, such a presumption can be rebutted by an accused by raising a probable defence. The law on this preposition is well-settled and for the same, a reference can be made to the decision of Hon ble Apex Court in case of Basalingappa v. Mudibasappa (2019) 5 SCC 418, whereby it was held as under: 25. We having noticed the ratio laid down by this Court in the above cases on Sections 118 (a) and 139, we now summarise the principles enumerated by this Court in following manner: 25.1. Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability. 25.2. The presumption under Section 139 is a rebuttable presumption and the onus is on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rts to examine the said persons in defence evidence, who as per his theory, were the creditors of the complainant and for whose assurance, the petitioner had handed over these cheques to the complainant. Further, the petitioner did not bring on record any material to establish even his own financial soundness and credibility as he had neither filed his bank statements nor his income tax returns before the Court. Thus, the aforesaid defence raised by the petitioner that the cheques were not issued toward a legally enforceable debt did not hold any ground. Having observed so, this Court does not find any infirmity with the detailed reasons recorded by the learned MM and re-iterated by the learned ASJ in this regard. 20. Moving further, it was also contended that the complainant had not adduced sufficient and consistent evidence to support her version that she had given loans of Rs. 14 lakhs each to the petitioner on two occasions for which the petitioner had handed over blank signed cheques to her. In this regard, it can be observed that other than her oral testimony, the complainant had produced photocopies of her income tax returns for assessment year 2004-05 till 2011-12 alongw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egards the first loan, in the returns of AY-2006-2007, The complainant is shown to have Rs. 6,50,000/- in home chest and Rs. 1,68,906/- as cash in hand. This probablises the financial capability of the complainant to have granted the loans. The giving of second loan of Rs. 14,00,000/- was demonstrated by the proceeds from the sale of jewellary. *** 6.4.4 Ld. Counsel for the Accused has argued with great vehemence that adverse inference need to be drawn against the complainant for having not procured the rest of the IT returns. To my mind, this is an argument thoroughly misconceived, no case for adverse inference is made out in view of the fact that it is the IT department who has been unable to find out the authenticated IT returns. The complainant could at best have filed the copies of returns available with her, which she has filed. If the department has, due to sheer negligence or otherwise, lost the copies, the necessary action under the law shall follow against him, but the complainant cannot be made to pay for the lackadaisical approach or loss of records by the department... Let us now turn to the authenticated copies of returns filed by the departments. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he authenticated copy of computation of taxable income filed by the complainant for the assessment year 2008-09, as produced by the department concerned before the Court, reflected the sale of jewellery of about Rs. 15 lakhs, which the complainant claims to have utilised towards advancing loan of Rs. 14 lakhs to the petitioner. 23. Thus, this Court is also of the view that the defence raised by the petitioner was not sufficient to rebut the presumption raised against him under Section 118(a) and 139 of NI Act, and where the issuance of cheques and signatures on the same were not disputed and when the complainant was sufficiently able to establish the factum of having advanced loans to the petitioner as well as their sources, this Court find no infirmity with the judgment passed by the learned ASJ vide which the conviction of the petitioner under Section 138 of NI Act as recorded by the learned MM was affirmed. 24. Accordingly, the present petition stands dismissed, alongwith pending applications if any. 25. The petitioner is hereby directed to pay the remaining amount of fine/compensation as awarded by the learned MM and surrender within 15 days before the Trial Court conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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