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TMI Blog2021 (4) TMI 1388X X X X Extracts X X X X X X X X Extracts X X X X ..... - Uma Shankar Auto Fuels , is not a proprietary concern represented by its proprietor or any other responsible person. It has committed an error in observing that there is defect in the complaint and the impugned judgment passed by the Trial Court suffers from legal lacuna. Absolutely there is no reason or basis for the Appellate Court to form such an opinion. I do not find any support to uphold the said findings. The accused who admitted the cheque-Ex.P1 and his signature found therein is duty bound to rebut the presumption under Section 138 of the N.I.Act. Even though the accused examined himself as DW1 and got marked Exs.D1 to D3 in support of his contentions, the same are not helpful to rebut legal presumption. The tenor of cross examination to PW1 is entirely different from the contention taken by the accused while examining himself as DW1. Accused who admitted his signature found on Ex.P1, is not successful in rebutting the presumption and therefore, he is liable to be convicted. There are no illegality or perversity in the said findings. The findings given by the Appellate Court is not sustainable - appeal allowed. - THE HON BLE MRS.JUSTICE M. G. UMA For the Appellant : Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt requested the Trial Court to take cognizance of the offence and to summon the accused. 3. The Trial Court took cognizance of the offence against the accused and registered Criminal Case No.328/2007 against the accused for the offence punishable under Section 138 of the N.I. Act. The accused appeared before the Trial Court and pleaded not guilty for the said offence. The complainant examined himself as PW.1 and got marked Exs.P1 to P5 in support of his contention. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.P.C. and examined himself as DW-1 and got marked Exs. D1 to D3 in support of his contention. The Trial Court after taking into consideration all these materials on record, came to the conclusion that the complainant is successful in proving the guilt of the accused for the offence punishable under Section 138 of the N.I. Act and proceeded to convict and sentence him as stated above. 4. Being aggrieved by the Judgment of conviction and order of sentence passed by the Trial Court, the accused has preferred Criminal Appeal No.73/2009 before the Appellate Court. The Appellate Court after taking into consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onviction and order of sentence passed by the Trial Court. 8. In view of the submissions made by the learned counsel for appellant and on perusal of the materials on record, the point that would arise for my consideration is: Whether the impugned judgment of acquittal passed by the Appellant Court calls for any interference and needs to be set aside by restoring the Judgment of conviction and order of sentence passed by the Trial Court? My answer to the above point is in Affirmative for the following: REASONS 9. It is the specific contention of the complainant that he is running a Proprietary concern, under the name and style as Uma Shankar Auto Fuels , Sirsi and the accused used to purchase diesel for his trucks. When the accused purchased diesel worth Rs. 15,000/-, the complainant demanded for making payment and accused issued cheque-Ex.P.1 in discharge of his liability. On presentation of the said cheque for encashment, the same was dishonored as there was insufficient fund in the account of the accused. Even though, the legal notice got issued by the complainant calling upon the accused to pay the cheque amount, he never claimed the notice nor he has repaid the cheque amount. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he had taken Ex.P.1 from the Society for his personal use; he had kept it in his pocket after signing the same. The said document was taken by the complainant and it was filled by him without permission of the accused. The accused is further examined as D.W.1. During the cross-examination, witness categorically admitted that he is running a transport business. But denied the suggestion, complainant is running a Petrol Bunk and he had purchased diesel worth of Rs. 15,000/-. Witness stated that Ex.P.1 belongs to his account with the Society, but stated that it is a withdrawal slip and not a cheque. Witness categorically admitted that Ex.P.1(a) is his signature. Witness denied that any legal notice was tendered to him. However, he admitted that the summons issued to him to the same address is served on him. 13. Ex.D.1 is the copy of the Election Identity Card issued in the name of the accused. Ex.D.2 is the copy of the registration certificate standing in the name of the accused and Ex.D.3 is the copy of the Insurance Certificate issued by the National Insurance Company Limited. 14. These materials were considered in the light of the contention taken by the learned counsel for the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of M/S. Kalamani Tex and Another vs. P. Balasubramanian in Criminal Appeal No.123/2021, wherein the Hon ble Apex Court discussed of length and reiterated the position of law with reference to its earlier decisions on the subject and held as under: 14. ..The statute mandates that once the signature(s) of an accused on the cheque/negotiable instrument are established, then these reverse onus clauses become operative. In such a situation, the obligation shifts upon the accused to discharge the presumption imposed upon him. This point of law has been crystalised by this Court in Rohitbhai Jivanlal Patel v. State of Gujarat (2019) 18 SCC 106 in the following words: In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein, the presumption under Section 139 of the N.I.Act operates but the accused has not discharged his burden to rebut the legal presumption. Even though he examined himself as DW1, he has not probabalised his defence. 19. The Trial Court after taking into consideration the materials on record convicted the accused for the offence punishable under Section 138 of the N.I. Act. But however, the Appellate Court acquitted the accused on the sole ground that the complainant ought to have been filed in the name of Uma Shankar Auto Fuels, Sirsi represented by its Proprietor or any other responsible person and since that is not done, there is inherent defect in the complaint which is not noticed by the Trial Court and hence, the impugned Judgment of conviction suffers from legal lacuna. 20. Ex.P.5 is the Private Complaint filed by the complainant before the Trial Court, wherein the complainant has categorically stated that he is the owner of the Petrol Bunk under the name and style as Uma Shankar Auto Fuels , Sirsi. The complainant filed his affidavit in lieu of examination- in-chief and reiterated that he is the Proprietor of the Petrol Bunk- Uma Shankar Auto Fuels . It is suggested to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in this case had to file a civil suit, the proper description of the plaintiff should be Atmakuri Sankara Rao carrying on business under the name and style of M/s.Shankar Finance Investments, a sole proprietory concern . But we are not dealing with a civil suit. We are dealing with a criminal complaint to which the special requirements of Section 142 of the Act apply. Section 142 requires that the complainant should be payee. The payee is M/s.Shankar Finance Investments. Therefore, in a criminal complaint relating to an offence under Section 138 of the Act, it is permissible to lodge the complaint in the name of the proprietary concern itself. (Emphasis supplied) 23. The law laid down by the Hon ble Apex Court does not require any further discussion. The Appellate Court committed an error in assuming that the proprietary concern- Uma Shankar Auto Fuels , is not a proprietary concern represented by its proprietor or any other responsible person. It has committed an error in observing that there is defect in the complaint and the impugned judgment passed by the Trial Court suffers from legal lacuna. Absolutely there is no reason or basis for the Appellate Court to form such an opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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