9911796707
TMI Blog2021 (6) TMI 464X X X X Extracts X X X X X X X X Extracts X X X X ..... on petitioner/accused in PCR No. 58/2004 before the Trial Court alleging commission of the offence punishable under Section 138 of the N.I. Act. It is contended by the complainant that he is the dealer in iron ore, manganese, iron ore fines etc., and the accused is also a dealer in such materials. The accused along with one-Mr. Aleem approached the complainant requesting to supply huge quantity of iron ore fines and assured to pay the amount for the same. As per the contract entered into between the parties, the complainant supplied the iron ore fines to the accused during the period from 04.02.2004 to 31.03.2004. Total quantity of iron ore fines supplied during this period is 9825.830 metric tonnes. The total cost of the material supplied was Rs. 70,59,973/-, for which the accused was liable to pay to the complainant. The accused assured to make the payment and accordingly, the complainant received a sum of Rs. 6,15,000/- in cash and a sum of Rs. 10,00,000/- through D.D. bearing No. 370848 of BDCC Bank Limited dated 30.01.2004 and another sum of Rs. 16,00,000/- through another D.D. bearing No. 222508 dated 21.02.2004. Thus, the complainant received Rs. 32,15,000/- from the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evision petitioner submitted that even though the transaction between the complainant and accused is admitted, the complainant used to supply the iron ore fines only against advance payment as evidenced by Ex.P-11. Accordingly, the accused placed order for supply of iron ore fines with 63+ grade and made payment of Rs. 49,50,000/- through D.D. and issued the cheque Ex.P.1 for Rs. 20,00,000/-. It was as advance payment for supply of iron ore fines. But the complainant supplied inferior quality of iron ore fines of grade 53% and caused heavy loss to the accused. The inferior quality of iron ore fines was returned to the complainant and therefore, the complainant is not entitled to encash the cheque in question. Under such circumstances, the offence under Section 138 of the N.I. Act is not made out against the accused. 8. Learned counsel further submitted that when the complainant supplied the inferior quality of iron ore fines, the accused demanded back the advance amount of Rs. 49,50,000/- and also the cheque for Rs. 20,00,000/-, which were given as advance. But the complainant had not returned the amount nor the cheque in question. On the other hand, he misused the cheque Ex.P.1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the revision petition is liable to be allowed?" My answer to the above point is in 'Negative' for the following: REASONS 12. It is the contention of the complainant before the Trial Court that he had supplied 9825.830 metric tones of iron ore fines valued at Rs. 70,59,973/- and the accused paid only Rs. 32,15,000/- and he was due to an amount of Rs. 38,44,973/-. Towards part payment of the amount due to be paid, the accused issued the cheque-Ex.P.1 for Rs. 20,00,000/-, which came to be dishonored, as there was 'insufficient funds' in his account. Even after issuance of the legal notice, the accused has not repaid the cheque amount and thereby he has committed the offence punishable under Section 138 of the N.I. Act. 13. The accused had issued reply to the legal notice as per Ex.P.291. The defence taken by the accused in the said reply notice is that the iron ore fines supplied by the complainant was of inferior quality, as the complainant was suppose to supply the iron ore fines with grade 60% +. But he has supplied iron ore fines with grade 53% and therefore, the accused suffered loss. It is stated that the accused had paid Rs. 49,50,000/- through D.D. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of iron ore fines and the accused had returned the consignment to the complainant. 16. The rival contentions taken by the parties as discussed above disclose that the accused admits in candid words that he had issued the cheque-Ex.P.1 in favour of the complainant. His contention is that it was issued as advance payment for supply of iron ore fines cannot be accepted, as there are no materials to substantiate the same. The contention of the accused that he did receive the consignment from the complainant, but it was of inferior quality is also not proved by the accused. Therefore, it remains that the accused had issued Ex.P.1-cheque in favour of the complainant for Rs. 20,00,000/-, which is admittedly dishonored as per the endorsements Exs.P.2 and 3. It is also admitted that the accused had not repaid the cheque amount in spite of issuance of legal notice. 17. When the complainant is successful in proving that the accused has issued the cheque in question towards legally recoverable debt, the presumption under Sections 118 and 139 of the N.I. Act comes into operation. It is for the accused to rebut these presumptions by placing cogent materials in support of his defence. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to patent error of law. 16. No doubt, and as correctly argued by senior counsel for the appellants, the presumptions raised under Section 118 and Section 139 are rebuttable in nature. As held in Ms. Narayana Menon v. State of Kerala (2006) 6 SCC 39, which was relied upon in Basalingappa v. Mudibasapp (2019) 5 SCC 418, a probable defence needs to be raised, which must meet the standard of "preponderance of probability", and not mere possibility. These principles were also affirmed in the case of Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 wherein it was further held that a bare denial of passing of consideration would not aid the case of accused. 17............ 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, where this court held that: "Even a bl ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
