9911796707
TMI Blog2006 (12) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... e Instruments Act, 1881 and had been sentenced to simple imprisonment for six months. Besides this, the petitioner was directed to pay compensation under Section 357 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) to the complainant to the tune of ₹ 5 lacs and, in default, to undergo further simple imprisonment for three months. 2. The learned Additional Sessions Judge dismissed the appeal primarily on the ground that the petitioner had failed to raise any probable defense and failed to rebut the presumption that the cheque in question was issued in discharge of his liability. 3. The petitioner had allegedly issued a cheque dated 27.12.1999 for a sum of ₹ 3,15,000/- in favor of the respondent No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The learned Counsel for the petitioner submitted that no reply or response to this letter dated 4.2.2000 (Exhibit PW1/D1) was received by the petitioner. He submits that in the wake of this letter the complaint filed by the complainant ought to have spelt out the details of the liability, in purported discharge of which the cheque in question was issued. He referred to the complaint. The first paragraph of which reads as under: 1. That the accused to discharge liabilities of repayments of the amounts taken by him issued a cheque bearing No. 568558, dated 27.12.99 for ₹ 3,15,000/- drawn on Punjab National Bank, Khari Baoli, Delhi-6 as part payment. 6. The learned Counsel for the petitioner submitted that the above paragraph is the on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hs fifteen thousand) after adding the interest amount". Subsequently, in the same cross examination, PW1 has clearly admitted that the interest element was not specified in the complaint nor was the principal amount of ₹ 2,96,000/- mentioned in the complaint. 8. In the said cross examination a further stand is taken by the complainant that certain goods were purchased from the petitioner vide invoice bearing No. 122 dated 16.12.1999 (Exhibit PW1/D2). It was further stated that the amount of the invoice had already been adjusted and, thereafter, the balance payment had been shown as ₹ 2,96,000/-. It is then stated by PW1 that: "The accused has taken a loan of ₹ 5 lakhs (five lakhs) and the goods purchased by us f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that, even as per the statement of the petitioner recorded under Section 313 of the Code, it is clearly established that the cheque was issued by the petitioner; that it had been returned due to insufficiency of funds; that the notice was served on the petitioner; that he failed to pay the amount within the stipulated period of 15 days and that the complaint was filed in time. He submits that, on the face of these circumstances, the presumption under Section 139 was clearly raised and went un-rebutted and, Therefore, the courts below relying upon this presumption have correctly convicted and sentenced the petitioner. 11. Considering the arguments advanced on behalf of the counsel for the parties, I find that there is no difficulty with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to establish from the evidence on record itself that a case under Section 138 is clearly made out. The petitioner has been able to show that a contemporaneous reply given by him on 04.02.2000 raised issues with regard to the manner and circumstance under which the complainant came in possession of the cheque in question. However, despite being aware of these issues, when the complaint was filed by the complainant, as rightly pointed out by the learned Counsel for the petitioner, the same was significantly vague and bereft of any details. The first paragraph of the complaint which has been extracted above clearly refers to "discharge liabilities of repayments of the amounts". The expression used in the complaint is that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re conspicuously absent. The petitioner has been convicted and sentenced on the vague and bland allegation that cheque of ₹ 3,15,000/- had been issued by the petitioner in discharge of liabilities of repayments of amounts taken by him. This is the only statement contained in the complaint and no further details are forthcoming even in the evidence led by the complainant. 13. In these circumstances, I hold that the courts below have grossly erred in law in concluding that the petitioner was unable to rebut the presumption raised under Section 139. Since, the conviction and sentence have been raised merely on the petitioner's alleged inability to rebut the presumption and there is nothing available on record to establish the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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