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TMI Blog2014 (5) TMI 1088X X X X Extracts X X X X X X X X Extracts X X X X ..... . Tarun Engineering Syndicate. 2. In the complaint relevant to Crl. A. No.1432/2013, a cheque dated 10.10.1997 was issued by Shri Sumit Seth for a sum of Rs. 4,59,704/-; in the complaint relevant to Crl. A. No.1433/2013 a cheque dated 1.8.1997 was issued for Rs. 5.00 lakh; in the complaint relevant to Crl. A. No.1434/2013 a cheque dated 25.7.1997 was issued for Rs. 8.00 lakh; in the complaint relevant to Crl. A. No.1435/2013 a cheque dated 22.7.1997 was issued for Rs. 9,79,151/- and in the complaint relevant to Crl. A. No.1436/2013 a cheque dated 15.7.1997 was issued for Rs. 8.00 lakh by Mr. Sumit Seth as partner of M/s. Tarun Engineering Syndicate. Two cheques dated 3.8.1997 - one for Rs. 6,56,633/- and the other for Rs. 4.00 lakh were subject matter of the complaint in Crl. A. No.1431/2013 but since the payment against those cheques have already been made to the appellant/complainant Company, Crl. A. No.1431/2013, arising out of the decisionof the trial court, was withdrawn by the appellant on 7.5.2014. 3. The complainant Company examined three witnesses in support of its case. CW1 is an official from Syndicate Bank who deposed with respect to dishonour of two (2) cheques - one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue involved in these cases is as to whether the cheques in question were issued as advance for supply of goods which were never supplied or they were issued towards payment of the goods which were purchased by the firm and were duly supplied to it. 6. There is a statutory rebuttable presumption under Section 118 (a) of the Negotiable Instruments Act, 1881, that every negotiable instrument was made or drawn for consideration. Section 139 of the said Act also provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, or any debt or other liability. In Hiten P. Dalal Vs. Bratindranath Banerjee (2001) 6 SCC 16, the Apex Court inter alia observed that the statutory presumption does not preclude the person against whom the presumption is drawn from rebutting it and proving to the contrary, but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man. In Kumar Expor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon. xx xx xx xx 32. The standard of proof evidently is preponderance of probabilities. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies. xx xx xx xx 41...Therefore, the rebuttal does not have to be conculsively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'." 7. Since the accused did not lead any evidence at all, the question which arises for consideration is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of bill Nos.1026 & 1040, according to CW3 Shri Kishore Kumar the discrepancy in the amount of bills mentioned in the C-Forms could be a typographical error, the same having been issued by the purchaser and taken by Excise MODVAT, thereby suggesting that the accused had claimed MODVAT against the purchases and that explains the difference in the amount. 10. Ex.CW3/4 (Colly) is the statement of account maintained by the appellant/complainant Company in respect of the accused Tarun Engineering Syndicate. This account has been maintained in electronic form the year 1996-1997 onwards. A certificate under Section 65B of the Evidence Act is also annexed to the said statement. CW3 Shri Kishore Kumar has vouched the correctness of the said statement on oath. On the other hand the respondent has not produced any witness to rebut the sworn statement of Shri Kishore Kumar nor has it produced its own account books or its account in respect of the transaction with the complainant/appellant. This is not the case of the accused that it had no dealing with the appellant/complainant at any point of time. In these circumstances there would be no reason to reject the statement of accounts filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duly credited in the account. When cheque Nos.092108, 092109, 192110 and 092111 of Rs. 1.64 lakh each and four cheques of Rs. 1.68 lakh each were deposited in the bank on 24.5.1997 credit entry was made in the account and when the aforesaid cheques were returned unpaid on account of payment having been stopped debit entries were made on 24.5.1997. When a cheque of Rs. 13.78 lakh was received on 26.5.1997 a credit entry was made. The same was the position with respect to two cheques of Rs. 5.00 lakh each received on 30.5.1997 and 4.6.1997 and one cheque of Rs. 5.00 lakh on 14.6.1997, one cheque of Rs. 5.00 lakh on 19.6.1997, two cheques of Rs. 5.00 lakh each on 19.6.1997 and the other on 20.6.1997. There are several other entries made in the statement of account. This was not the case of the accused either in the statement under Section 313 of Cr.P.C. or during cross-examination of the witnesses of the complainant that the aforesaid cheques were not issued by it to the complainant/appellant Company. In these circumstances and also considering that neither any oral evidence has been produced by the accused nor has it produced its account books, I see no reason to reject the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is preponderance of probability, which can be drawn not only from the material on record but also by reference to the circumstances upon which the accused relies. However, in the facts & circumstances of the case the accused before this Court has not been able to discharge the onus placed on him from the material brought on record by the complainant nor has he been able to show existence of circumstances from which it may be inferred that the cheques in question were without consideration. In K. Prakashan (supra), the Apex Court inter alia held that if two views are possible, the appellate court shall not reverse a judgement of acquittal only because another view is possible. There is no quarrel with the aforesaid proposition of law but the facts & circumstances of the case leave no scope for two view being possible in the matter and, therefore, the aforesaid legal proposition would not apply to the case before this Court. In Krishna Janardhan Bhat (supra) the Apex Court again noted that to discharge the burden placed on him the accused need not examine himself and he can discharge the same on the notice being issued to him. Since there is no material on record which would show, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is committed by the firm, provided he was the person in charge of and responsible to the firm for conduct of its business at the relevant time. Unless the firm is prosecuted and convicted, a partner cannot be convicted with the aid of Section 141 of the Act. This legal proposition was made more than clear by the Hon'ble Supreme Court in Aneeta Hada Vs. Godfather Travels & Tours Pvt. Ltd. and connected matters (2012) 5 SCC 661. Settling the controversy in this regard, the three Judges Bench of the Apex Court inter alia held as under: "43. In view of our aforesaid analysis, we arrive at the irresistible conclusion that for maintaining the prosecution under Section 141 of the Act, arraigning of a company as an accused is imperative. The other categories of offenders can only be brought in the dragnet on the touchstone of vicarious liability as the same has been stipulated in the provision itself. We say so on the basis of the ratio laid down in C.V. Parekh (supra) which is a three-Judge Bench decision. Thus, the view expressed in Sheoratan Agarwal (supra) does not correctly lay down the law and, accordingly, is hereby overruled. The decision in Anil Hada (supra) is overruled w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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