TMI Blog2006 (7) TMI 732X X X X Extracts X X X X X X X X Extracts X X X X ..... ich one P. V. Kandolkar, was the Arbitrator. There is also no dispute that towards the said fees, the accused had paid a sum of ₹ 10,000/- to the Complainant as part payment. Although the accused also claimed that he had paid another ₹ 12,000/- , this is disputed by the Complainant. There is also no dispute in the said arbitration proceedings, an Award was made in favour of the accused in the sum of ₹ 12,25,299/- , which amount the accused received on 12.01.1999 and the Complainant himself had filed the said Award before the Court at Vasco da Gama, as admitted by the Complainant, in one of the cases. 3. The complainant filed three separate complaints bearing the aforesaid numbers: C.C. no.130/N/99/E and C.C. no. 131/N/99/E were filed on 19.04.1999. C.C. no. 175/N/99/E, was filed on 20.05.1999. 4. In all the cases, it was the case of the Complainant that the accused had issued the said cheques, on the dates mentioned therein, drawn on State Bank of India, towards the payment of dues by the accused to the Complainant. The Complainant had then presented the said cheques in his account in Corporation Bank at Aquem, Margao, on different dates. The cheque fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the said disbursement was made about one or two months prior to the issuance of the cheques in question by the accused. He stated that the cheques were issued on the dates appearing on the cheques. On the other hand, the accused examined himself and stated that the Complainant was engaged by him as his consultant before the arbitrator, the said Kanolkar, and it was orally agreed between them that he had to pay the Complainant 5% of the amount of the Award and the same was to be paid to the Complainant only after he had received the amount of the Award. He also stated that during the pendency of the said arbitration proceedings, he had issued the cheques in dispute to secure the payment of the Complainant's fees and the Complainant had also taken an amount of ₹ 22,000/- from him, ₹ 10,000/- by cheque and ₹ 12,000/- by cash. 7. These are the broad facts stated by the Complainant and the accused. 8. As far as the law is concerned, it is well settled. The Apex Court in the case of K. Bhaskaran v. Sankaran Vaidhyan Balan and another((1999) 7 SCC 510/AIR 1999 SC 3764) has clearly stated that if the signature on the cheque is admitted to be that of the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists and unless the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. The aforesaid decision has been followed in the case of Mohanan v. Bibhukumar(2003(2) DCR 339) wherein the Kerala High Court has held that the burden on the accused has got to be discharged by preponderance of probabilities, as in a civil case. It is also stated that the presumption under Section 139 of the Act is available to all cheques and not only to cheques in the handwriting of the drawer. There cannot be any dispute as regards the said propositions. 9. On behalf of the Complainant, it has been submitted that the accused did not reply to the notice and, therefore, it has got to be presumed that the accused had admitted the liability and in this context reference was made to the case of M/s. Jayam Company and another v. T. Ravichandran(2003 (2) DCR 145) wherein the Madra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as the only document received by him. It appears that in each case, the Complainant advanced the money and waited for a month or two to receive the cheques from the accused. The very fact that the cheques in question carry consecutive numbers, falsify such a story and suggest that they were given at one time as contended by the accused. There is no reason why the Complainant could not have obtained a receipt on each occasion for such large sums. The Complainant was appointed as a Consultant and it would be difficult to believe that the Complainant would have advanced a loan to his very client. The Complainant had stated that the accused was in need of money and that is the reason why he had lent money to the accused but this story of the Complainant was falsified by the accused by proving that on or about 13- 1- 1999 he was quite comfortable with the balance in his account of a sum of ₹ 12,16,657/- . The learned J.M.F.C. observed, and in my view rightly, that the Complainant had failed to give the specific dates of giving details of the said loans. It is not the case of the Complainant that the total sum of ₹ 1.90 lakhs was given by the complainant at one time and it ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt were 5% of the amount of the Award but according to the Complainant they were at the rate of 15% of the Award. The accused stated that the said letter dated 21- 12- 1995 was issued by the accused. The accused has admitted his signature on the said letter Exh.PW1/G- D and it was suggested to the Complainant that the accused had signed a blank letter head and it was used by the Complainant and it was fabricated by the Complainant to extract money from the accused. On behalf of the Complainant, it is submitted that this letter Exh.PW1/G- D supports the case of the Complainant that the fees payable to the Complainant by the accused were 20%. It has further been argued on behalf of the Complainant that initially the fees payable were at 20% but were reduced at 15% by mutual agreement. In my view, this letter Exh.PW1/G- D does not help the case of the Complainant at all. Firstly, it must be observed that if the accused could give the Complainant blank signed cheques, and the Complainant even wrote one of the counterfoils of the said cheques, it is not difficult to believe that, as the Complainant was appearing on behalf of the accused, the accused might have given to the Complainant t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the words are of extreme significance, in particular, by reason of the user of the words any the first three words suggest that in fact for whatever reason if a cheque is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability, the words any debt or other liability if read with the first three words at the commencement of Section 138 leave no manner of doubt that for whatever reason it may be, the liability under this provision cannot be avoided in the event the same stands returned by the banker unpaid. The Legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. 14. On behalf of the Complainant, therefore, it is submitted that since as per the accused himself the cheques were issued as a security for the payment of the consultancy fees of the Complainant, the accused cannot avoid liability on the same. It is submitted that the accused thus became a debtor after he received the Award amount and hence provisions of Section 138 of the Act are attracted. It is further submitted that the admission on the part of the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a completely false case and also manipulated documents like letter dated 21- 12- 1995. It is submitted that if the three cheques were given in blank as security for the payment of fees of the Complainant in the year 1995, then it follows that there was no liability in favour of the Complainant, i.e. the liability if any being contingent in nature in that it would come into being only after the Award was passed and in case the accused had lost the arbitration case there would be no fees payable. It is further submitted that assuming the liability came to be crystallized after the Award was passed on 12-7-1996, the Complainant would be at the highest entitled to fill in the cheques by implication so as to cover 5% of the amount of the Award as his fees which comes to ₹ 62,265/- out of which admittedly the Complainant received ₹ 10,000/- , though the case of the accused is that the accused paid ₹ 22,000/- thus leaving a balance of ₹ 52,265/. It is submitted that all the three cheques could be filled in an aggregate amount i.e. ₹ 62,265/- and if each of the cheques were to be filled they could not be for an amount of more than ₹ 17,421/- . It is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce otherwise it will only help dishonest Complainants to come to the Court with falsehood. Since the Complainant's case is of criminal nature, it is for the Complainant to prove his case on his strength and not on the weakness of defence. Secondly, the Complainant has failed to prove that there was any debt or liability on the part of the accused to the extent of ₹ 1.90 lakhs towards fees payable by accused. There is no dispute that the amount of the Award was ₹ 12,45,299/- . As per the Complainant the consultancy fees were fixed at 15% and presumably the Complainant completed the cheques in his own handwriting assuming that 15% of the amount of the Award would work out to ₹ 1.90 lakhs. However, 15% of ₹ 12,45,299/- works out to ₹ 1,86,794- 85. As per the accused 5% of the amount of the Award works out to ₹ 62,264.95. The Complainant's case that the Complainant and the accused had agreed to pay to the Complainant consultancy fees at the rate of 15% cannot be accepted. As already stated the Complainant first stated that the fees agreed upon were 15% and in support of that came with the said letter showing that the fees agreed we re 20%. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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