Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (1) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (1) TMI 612 - HC - Indian LawsDishonor of Cheque - existence of legally enforceable debt or not - service of statutory legal notice - allegation is that the impugned cheque was stolen by the respondent when he was working as Supervisor under the petitioner - HELD THAT:- Admittedly, no action has been taken by the petitioner on the allegation that the respondent had stolen any of his cheques. Such an action has not been taken even after the filing of his complaint. Though it is correct that the rebuttal proof can be through preponderance of probability, the probability cannot be presumed from mere suggestion put by the accused during his cross examination, PW1. Even if the accused does not subject himself for examination, the improbabilities can also be explored from the evidence and materials of the complainant. The simple contention of the complainant is that he had lent the sum of ₹ 4,00,000/- to the petitioner for his business needs and he managed to arrange the money from the sale proceeds kept in the hands of his father. The complainant produced the copy of the sale deed dated 07.11.2002 and that would show that the property was sold on the said date for a valuable consideration. Prima facie proof is shown by the respondent/complainant to show that he had the background to lend a sum of ₹ 4,00,000/- to the petitioner/accused. The initial presumption coupled with the supporting evidence will strengthen the case of the complainant and make the initial presumption culminated into the conclusive proof, in the absence of any contrary proof. But the petitioner/accused had not produced any materials to demolish the above proof offered by the petitioner. In the said circumstances, it has to be concluded that the petitioner had not rebutted the evidence of the respondent/complainant or falsified it. Whether the respondent has not sent the statutory legal notice in the manner known to law and complied with the mandatory requirements before filing the complaint? - HELD THAT:- Once the cheque is dishonoured for insufficient funds, the complainant has to necessarily send a legal notice in compliance of Section 138(b). The complainant has chosen to send the notice to the address known to him in which the accused was residing and the same address was shown as his address in this Criminal Revision Case also and that proves that the petitioner continues to live there but some how evaded to receive notice. The notice returned for the reason that addressee not found cannot be held against the respondent - the contentions of the learned counsel for the petitioner/accused that the respondent has not complied the mandatory requirement contemplated under Section 138(b) of the Negotiable Instruments Act, cannot be agreed upon. The learned Trial Judge and the learned First Appellate Judge have correctly appreciated the materials on record in a right perspective and arrived at the conclusion that the accused is guilty for the offence under Section 138 of Negotiable Instruments Act - Criminal Revision Case is dismissed.
|