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TMI Blog2023 (11) TMI 1116X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent has no liability with the appellant. The respondent has admitted in his cross examination, the modus operandi followed by Ex.P.5 to Ex.P.10 and Ex.P.18 to Ex.P.21 which are invoices and stock transfer challans - the defence raised by the respondent also fails to ground for the reasons discussed. Hence, this Court has no hesitation to hold that in view of the discussion in the preceding paragraphs, the appellant is entitled for statutory presumption and in the absence of any positive evidence much less any evidence to rebut the statutory presumption by the accused, the charge under Section 138 of N.I. Act stands proved and hence, the reasoning rendered by the lower Appellate Court stands vacated and the same is set aside - thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Manager of the Bank was examined as P.W.2 and Ex.P.1 to Ex.P.22 were marked. On behalf of the accused, he examined himself as D.W.1 and marked Ex.D.1 to Ex.D.13. Based upon the oral and documentary evidence adduced before the Court below, the learned Judicial Magistrate, FTC, Hosur has held that the complainant is entitled for presumption under Section 139 of the Negotiable Instruments Act and the accused has failed to rebut the statutory presumption and accordingly, laid the conviction. 6. Aggrieved against the said conviction and sentence, the accused has moved Criminal Appeal No. 34 of 2014 before the learned Additional District and Sessions Judge, Krishnagiri at Hosur and the same was allowed on 27.09.2015 and the accused was acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f receipt of the notice. 10. It is seen from Ex.P.3, legal notice dated 07.06.2013, the same was duly served upon the respondent on 10.06.2013. On receipt of the said notice, the respondent did not pay any payment or reply to the notice in time and it appears that the appellant has filed a complaint before the learned Judicial Magistrate, FTC, Hosur and the same was taken as cognizance. 11. A perusal of Ex.P.2. and Ex.P.3 and Ex.P.12, reply notice, goes to show that Ex.P.1 cheque was returned due to variance in signature, the difference comes under the purview offence under Section 138 of the Negotiable Instruments Act. It may be pertinent to point out that in any case even if the signature was in order, the cheque would have been dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that all materials destined for Hosur were initially received at the respondent's premises before they were supplied to others. Further, the appellant, to prove the supply of materials, through Ex.P.5 to Ex.P.10, invoices and E.Sugam forms, Ex.P.13 to Ex.P.18. The modus operandi is the same as shown by the respondent's exhibit marked as Ex.D6. He further admits that the details (Address, TIN Numbers) mentioned in the invoices and forms belong to him. 15. The prime point raised by the defence is that initially he accepted handing over of the cheque. However, during the evidence, he has pleaded that the cheque was given to the appellant in the year 2000 for security purpose. On perusal of the oral evidence of P.W.2 (Bank Manager ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s belong to him. Hence, this Court finds that there is no evidence let by the respondent that the cheque was issued only for security purpose. Thus, the defence raised by the respondent also fails to ground for the reasons discussed in the preceding paragraphs. 16(c). Further with regard to the supply of materials as stated supra, the transactions have been duly reflected in the prosecution witnesses as Ex.P.13 to Ex.P.18 and hence, this Court finds that the respondent has not raised any question or suggestion regarding denial of defence of his existing liability and there is no cogent evidence produced by the respondent to handing over the cheque to the appellant for security purpose. 17(a). The ratio laid down in the Hon'ble Ape ..... X X X X Extracts X X X X X X X X Extracts X X X X
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