TMI Blog2020 (1) TMI 387X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken by the petitioner that those cheques were issued by him for consultancy which the complainant was required to provide him. The said consultancy was not provided to him. But the petitioner has totally failed to discharge that burden by adducing cogent and convincing evidence - I do not find any ground to interfere with the concurrent findings of both the Learned Courts below. It is well settled principle of law that in exercise of its power under Section 482 of the Code of criminal Procedure, the High Court should not in absence of perversity, upset concurrent factual findings of Trial Court and Appellate Court. Moreso, the High Court in exercise of its inherent power should not re-analyze and reassess the materials particularly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 138 of the Negotiable Instruments Act on the allegations that the petitioner took friendly loan from the opposite party and undertook to repay the same in terms of the agreement dated 13.03.2001. It was also alleged in the said petition of complaint that the accused person, to run his business took assistance of consultancy as per the terms of agreement dated 13.03.2001. Accordingly the accused person in discharge of his liability issued eight post-dated account payee cheques amounting to ₹ 48,000/- in favour of the complainant on Bank of Baroda, Sadananda Road Brach, Kolkata-700026. The complainant deposited said eight cheques for encashment and all the cheques were dihonoured. Complainant came to know about the dishonour of those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund to give loan to the accused/petitioner. Learned Counsel has further contended that the cheques in question were issued on condition that the complainant would provide advice as a business consultant but the complainant did not render advice as he admitted the same in his evidence. He has submitted that in the instant case the question of existing liability for issuance of cheques does not arise. The impugned judgment and order has also been assailed by the Learned Counsel for the petitioner that the complaint proceedings under Section 138 of the Negotiable Instruments Act were barred by limitation. He has submitted that petition of complaint was filed beyond the period of limitation. In support of his contention Learned Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presumption under Section 118 of the Act. As per Section 118 of the Negotiable Instruments Act there is presumption that every negotiable instrument was made or drawn for consideration until the contrary is proved. The Negotiable Instruments Act contains two separate provisions viz 118 (a) and under Section 138 for raising presumption. The presumptions as mentioned in both the Sections are rebuttable presumptions. Whether the said presumptions have been rebutted or not would depend mainly upon the facts of the case and each case has to be judged on its own merit. During his examination under Section 313 of the Code of Criminal Procedure the petitioner stated that there was no existing enforceable liability to make payment and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition of complaint within the period of limitation. The complainant filed the petition of complaint as soon as the cease work was called off. Learned Judge also observed that the fact of cease work observed by the members of the Bar was not disputed by defence. I do not find any reason to interfere with the observation made by the Learned Judge, Appellate Court in this regard. In the present case the materials placed on record show that both the Learned Courts below came to the concurrent findings that the petitioner issued the cheques in question in discharge of his liability to repay the loan as par the loan agreement. Issuance of cheques in question is an admitted fact. Defence was taken by the petitioner that those cheques ..... X X X X Extracts X X X X X X X X Extracts X X X X
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