TMI Blog2020 (9) TMI 1028X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption is rebuttable. In the instant case, the said aspect has to be seen with two dimensions. First, whether such a presumption has been appropriately rebutted by the accused. Second, whether the complainant was the payee of the instrument or its holder in due course. The presumption about the existence of a legally enforceable debt stands in favour of the complainant. However, the said presumption is rebuttable. In order to rebut the said presumption, though it is not necessary that the accused has to necessarily enter the witness box and lead the evidence, it is suffice if he could able to rebut the presumption even in the cross-examination of the complainant (PW-1) or through other cogent evidence. In the instant case, admittedly, the accused has not entered the witness box by himself nor examined any witnesses from his side. He has not even produced any documents and got them marked as exhibits from his side. However, he has subjected the complainant to a detailed cross-examination. In the instant case, as being repeatedly observed, the complainant himself has categorically stated that the complaint was filed in his personal capacity. As such, without looking into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Acknowledgement Due (RPAD) and under Certificate of Posting to the accused demanding the cheque amount from him. Since the accused did not either respond to the notice or pay the cheque amount, the complainant was constrained to institute a complaint. 3. After appearance of the accused, the matter was contested by him, as such, the trial was held wherein the complainant got himself examined as PW-1 and got marked documents from Exs. P-1 to P11(a). From the accused' side, neither any witness was examined nor any documents were marked as exhibits. 4. After hearing both side, the Trial Court by its impugned judgment dated 09-06-2010, acquitted the accused of the alleged offence. Aggrieved by the said judgment of acquittal, the complainant has preferred this appeal. 5. The respondent/accused is being represented by his counsel. 6. The Trial Court records were called for and the same are placed before this Court. 7. Heard the arguments from the learned counsels from both side who are physically present in the Court. 8. Perused the materials placed before this Court. 9. The points that arise for my consideration in this appeal are: [i] Whether the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivery of the Tractor to the accused. He further submits that the alleged invoice at Ex. P-10 was not produced at the relevant point of time but an after-thought and was produced at a later stage and the said document was seriously disputed by the accused, as such, the same is not proved. Stating that the complainant has not approached the Trial Court with clean hands and that the judgment under appeal does not warrant any interference, learned counsel prays for dismissal of the appeal. 13. As already observed above, it is not in dispute that the accused was intending to purchase a Tractor, as such, he approached the complainant in that regard. It is also not in dispute that in connection with purchase of a Tractor, the accused paid in total a sum of ₹ 20,000/- to complainant as an advance amount towards the purchase value of the Tractor. In that connection, the accused himself has made a suggestion to PW-1 in his cross-examination, which suggestion has been admitted as true by PW-1/complainant. Therefore, it is established that the accused had approached the complainant for purchasing a Tractor from him and in that regard, had paid an advance amount. However, the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ectively. Ex. P-10 is stated to be an invoice cum delivery challan and Ex. P-11 is shown to be a partnership agreement. The accused in the further cross-examination of PW-1 has categorically disputed both these documents and more particularly, his alleged signature at Ex. P-10(b) in the alleged invoice cum delivery challan. 16. A perusal of Ex. P-10 would go to show that it is shown as an invoice cum delivery challan issued by one Sri. Venkateshwara Tractors with the date 24-01-2004 showing that a Tractor with a particular Engine number and Chassis number is shown to have been delivered to the accused. Though from its cursory look, it shows that a particular Tractor is shown to have been delivered through the said invoice cum delivery challan, but in-depth scrutiny of the said document, that too, in the light of the serious dispute with respect to the said document in the cross-examination of PW-1, it creates the following doubts:- Firstly, the said invoice cum delivery challan nowhere mentions about the make and model of the Tractor, except showing in the print description a Tractor with a particular serial number; Secondly, in the very same invoice, a provision is made t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er would have definitely filled all those blanks with necessary particulars which would have further proved the delivery of the alleged goods to the accused. The non-performance of the same further creates suspicion in the case of the complainant. Further, it is no where mentioned as to how can there be any difference in the alleged sale consideration, because, the invoice amount is for a sum of ₹ 3,45,000/-, whereas, after adding the advance cash amount of ₹ 20,000/- which is admittedly received by the complainant in cash, the total sale consideration of the Tractor comes to ₹ 20,000/- + the cheque amount of ₹ 4,00,922/- = ₹ 4,20,922/-. There is no explanation anywhere as to this alleged discrepancy of the sale value and the cheque amount. Therefore, even according to the complainant, there is mismatching of alleged sale value of the Tractor which is far less than the alleged cheque amount. When a dealer delivers a brand new vehicle to a purchaser, the practice warrants its temporary registration and also coverage of insurance to the said vehicle. As submitted by the learned counsel for accused, either Ex. P-10 or the evidence of PW-1 nowhere gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ription of the complaint in the cause title, it cannot be held that the complaint was not filed by the firm. As such, merely on technical ground, the complaint cannot be dismissed. 19. Had really the complaint been filed by a partnership firm, represented by its alleged Managing Partner, then, the complainant would have definitely shown the name of the complainant as the firm 'Sri. Venkateshwara Tractors', however, in its representation, he could have shown as 'represented by its Managing Partner, Sri. J. Murali Krishna'. Whereas in the case on hand, specifically and clearly, the complainant's name is shown as 'J. Murali Krishna', but not as 'Sri. Venkateshwara Tractors'. This further gets support from the very evidence of PW-1, who in his cross-examination, in the very first sentence has stated that, he is the proprietor of Sri. Venkateshwara Tractors. He has also stated in the second sentence that Sri. Venkateshwara Tractors is a registered establishment. In the very same paragraph of the very same cross-examination, he has categorically stated that, he has filed the complaint (case) in his personal capacity. In that way, he has made it clea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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