TMI Blog2021 (1) TMI 380X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that he lost bunch of papers and cheques and there is no any explanation as to why he singed the bunch of cheques and kept with him. It is also important to note that he relied upon Ex.D1, which does not specify the cheques that he lost. It appears that after the issuance of the cheques, he gave the letter to the police, which is not the complaint. He had only requested the police to inform him, if they find the documents and the cheques, which he had lost and to hand over. It is specifically mentioned that as on the date of borrowing the loan amount and issuing of the cheques, accused Nos.2 and 3 were in charge and responsible for the conduct of the business of the Company and they are responsible for all financial transactions of the Company. Hence, they are liable to be prosecuted under Section 138 of the N.I. Act. When a specific pleading has been made in para Nos.6 and 8 of the complaint that these accused persons were looking after the affairs of the company, the Trial Court ought not to have come to the conclusion that Section 141 of the N.I. Act has not been complied. The cheque is also issued on behalf of the company. It is also important to note that the Trial Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The complainant has lent an amount of ₹ 5,00,000/- and also an amount of ₹ 3,00,000/- in total a sum of ₹ 8,00,000/- to the accused and the accused agreed to repay the said amount within six months from the date of borrowing the said amount. But the accused failed to repay the said amount as agreed. On demand being made by the complainant, the accused issued the subject matter of the cheque dated 20.06.2005 for an amount of ₹ 5,00,000/- and another cheque dated 20.10.2005 for an amount of ₹ 3,00,000/- and when the same were presented for encashment, those cheques returned with an endorsement payment stopped by the drawer . Thereafter, legal notices were issued against the accused on 11.07.2005 and 10.11.2005 respectively and those notices were served on the accused, for which the accused gave untenable replies. Hence, without any other alternative, the complainant has filed a separate complaints against the accused. The Trial Judge, after taking cognizance, issued summons against accused Nos.2 and 3, who represented through their counsel, but did not plead guilty and claimed trial. Hence, the complainant in order to substantiate the averments of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed 'B' report, which has not been challenged. The cheque has been admitted by the accused and the defence taken by the accused that the same was stolen has not been proved. The cheques also bear the seal of the Company. Even though P.W.1 has produced cogent evidence before the Court, Trial Judge has committed an error in appreciating the same. 9. Learned counsel would further submit that only in case of a Public Limited Company, the resolution is required to be passed and in case of a Private Limited Company, no such resolution is necessary. The accused failed to adduce any probable evidence and hence, the Trial Judge ought to have drawn presumption under Section 139 of N.I. Act in favour of the complainant. Accused No.3 is arraigned as accused on the ground that she is a guarantor and accused No.2 for having signed the cheques. 10. Per contra, learned counsel appearing for the respondents would submit that the according to the complainant, the loan was availed in the year 2003 and the accused had agreed to repay the same within six months. But the claim of the complainant is that the cheques were issued in the year 2005. There is no explanation as to why there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of this Court dated 07.10.2020 passed in Crl.A.No.1271/2010, would submit that this Court referring to the judgment of Shree Daneshwari Traders (supra) dismissed the appeal under the similar circumstances, which had been filed against the very same accused. 15. In reply to the arguments of the learned counsel for the accused, learned counsel appearing for the complainant would submit that Section 269 (ss) of the Income Tax Act is not applicable to the case on hand, as it has been held by the Apex Court in the case of Rangappa vs. Sri. Mohan reported in (2010) 11 SCC 441 that though the cheque amount is for a sum of ₹ 40,000/-, the presumption can be drawn. 16. Learned counsel in support of his contention relying upon the judgment of this Court passed in Crl.A.No.869/2008 dated 18.08.2010 would submit that similar defence has been taken in the said appeal, which came to be allowed and sentenced the accused for the offence punishable under Section 138 of N.I. Act. Learned counsel would also submit that being aggrieved by the judgment of this Court, a special leave petition in S.L.P. No.10660/2010 was filed and the said S.L.P. was dismissed vide order dated 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CR are also known to him. The accused persons have executed loan application for having borrowed the loan amount and he could produce the same. It is also elicited that accused No.1 is the Registered Company under the Companies Act, 1956. He does not know as to whether accused No.1 Company passed the resolution to borrow loan from him or not. He paid the loan to accused Nos.2 and 3 and not to the Company. 20. P.W.1 in the further cross-examination admits that he has not obtained any receipt from the accused persons for having paid the loan amount. Witness volunteers that he paid ₹ 8,00,000/- as against ₹ 12,00,000/- to them by way of cash as requested. He says that he has not maintained any accounts for having paid the loan amount to the accused persons. He further admits that in support of his returns, he has maintained the account and he has not shown the present transaction in his Income Tax Returns. He says that he does not remember date of payment of loan amount made to the accused persons. He paid the loan amount to the accused persons in cash by drawing the same from his wife's SB account without interest. He could produce the documents to that effect. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as D.W.1 and in his affidavit in the form of chief-evidence, he says that he had no transactions with the complainant. Ex.P1 is one of the several cheques, which was lost by the accused No.1 Company and he had lodged the complaint on 08.01.2004 and given stop payment instruction. It is also his evidence that he has given the reply notice in terms of Ex.P12 and P.W.1 has admitted in the cross-examination that he had filled up the cheque-Ex.P1. D.W.1 in his chief stated that several cheque cases have been filed against him and got marked the documents at Exs.D1 and D2. He was subjected to cross-examination. 24. In the cross-examination of D.W.1, he admits that he purchased the house in Hanumanthanagar and for house warming ceremony, he had invited number of relatives. He also admits that in the said house warming ceremony, he had invited the complainant and he had attended. But he claims that he purchased the house from his own funds. It is suggested that he has not started the software company on his own funds and the same is denied. It is elicited that Ex.P1 in this case as well as Ex.P1 in C.C.No.5491/2006 has been issued by him and the signatures appearing in the said ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his transactions and those books of accounts are in his custody and he could produce the same, if required. It is also emerged in the evidence of both P.W.1 and D.W.1 that complaint is given in terms of Ex.D1. P.W.1 also admits that in pursuance of the said complaint, he was called upon and enquired by the police. This complaint is dated 08.01.2004 and in the complaint, it is mentioned that he lost some bundle of papers containing personal and official documents and some cheques and to inform him on the said address, if they find any of those documents. The accused also filed PCR on 23.01.2006 against the complainant. Accused No.2 and other relatives of the accused are arraigned as accused persons and in the said complaint, it is mentioned that certain signed cheques are missing and that immediately, he had given stop payment instruction to the bank and also the same was informed to the jurisdictional police. The police have not taken any action. In the result, accused issued notice to the complainant and started blackmailing the complainant. Accused Nos.1 and 2 in the said complaint are brothers and the other accused persons are totally strangers to the complainant. The total clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough the learned counsel appearing for the accused disputes that the said loan application is not given but has not denied the signature on the said loan application. Nothing has been suggested to P.W.1 that no such loan application was given to the complainant. There is no explanation on the part of the accused with regard to the document Ex.P15. No doubt, the said loan application does not bear his signature and it has been admitted by P.W.1. The accused has to explain as to when he was not in need of loan amount, why the said loan application has been submitted by him. 30. It is also the case of the accused that he lost the cheques and on perusal of Ex.D1, no where it is mentioned as to where he lost those cheques. Ex.D1 clearly depicts that he lost bundles of papers and some cheques and asked them to inform him if those papers and cheques are found. It has not been specifically stated by the accused as to when he lost the cheques and how it had gone to the custody of the complainant. He also not denied the fact that he started the business in the year 2001-2002. He further admits that he purchased the house at Hanumanthnagar and also invited the complainant to the house warm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he principles laid down in the judgments referred supra, it is settled law that once the cheque is admitted and there is no dispute with regard to the signature and so also notice was issued, the Court has to draw mandatory presumption under Section 139 of the N.I. Act. No doubt, in the case on hand, the accused has given reply denying the issuance of the cheque. But in the cross-examination of D.W.1, he categorically admits that he issued the cheques and the contents of Ex.P1 cheques in both the cases are also written by him. It has to be noted that P.W.1 in the cross-examination admits that he filled up the contents of Ex.P1. It is also important to note that D.W.1 categorically admits that no ordinary prudent man would sign the cheque and keep it with him. It is the case of the accused that he lost bunch of papers and cheques and there is no any explanation as to why he singed the bunch of cheques and kept with him. It is also important to note that he relied upon Ex.D1, which does not specify the cheques that he lost. It appears that after the issuance of the cheques, he gave the letter to the police, which is not the complaint. He had only requested the police to inform him, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant. When such pleadings has been made in the complaint and that the accused persons have approached the complainant to borrow the loan amount, it cannot be contended that Section 141 has not been pleaded. On perusal of para Nos.6 and 8 of the complaint, it is specifically mentioned that as on the date of borrowing the loan amount and issuing of the cheques, accused Nos.2 and 3 were in charge and responsible for the conduct of the business of the Company and they are responsible for all financial transactions of the Company. Hence, they are liable to be prosecuted under Section 138 of the N.I. Act. When a specific pleading has been made in para Nos.6 and 8 of the complaint that these accused persons were looking after the affairs of the company, the Trial Court ought not to have come to the conclusion that Section 141 of the N.I. Act has not been complied. The cheque is also issued on behalf of the company. 38. It is also important to note that the Trial Judge failed to take note of the 'B' report filed by the police against the complaint-Ex.D2 and the very theory of the cheques having been stolen has not been proved by leading any probable evidence before the Trial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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