9911796707
TMI Blog2022 (1) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... 013 for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter referred as the 'NI Act' for short). 3. The factual matrix of the case is that the respondent herein is a proprietor of Anil Medical Agency, doing the business of wholesale marketing of pharmaceuticals (medicines) at Raichur and the petitioner/accused is the proprietor of M/s. Anil Medical and General Stores at Kottalar, Raichur who is the retailer of the said pharmaceuticals. The accused had transaction with the complainant on various dates during the year April-2007 to July-2008 and had purchased medicines on credit basis from his wholesale agency amounting to Rs. 6,00,000/- and odd. In repayment of the part of the said amount the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de in the bills produced. None of the bills bears the signature of the accused or anybody on his behalf. Apart from the self-generated bill depicting alleged transaction, there is absolutely no material to indicate the actual delivery of medicine or the receipt by the accused and hence, the order of conviction is erroneous and the outstanding amount mentioned at Ex. P.1 cheque does not tally with either Ex. P.8 or P.9. The complainant has withheld the income tax of the relevant time of alleged transaction and the complainant has failed to establish the transaction and outstanding and inspite of the same, both the courts have not appreciated the said material on record and hence, it requires interference of this Court by exercising revisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal presumption and the same has not been rebutted by the accused and both the courts have given finding that transactions are not in dispute and admittedly issuance of cheque and no reply was given and also not rebutting the reply of the complainant and hence there are no grounds to interference by exercising the revisional powers regarding legality and correctness of the order passed by both the courts. 7. Having heard the learned counsel appearing for the petitioner and the learned counsel for the respondent and on perusal of the material on record the questions that would arise for consideration before this Court are: i. Whether the respective courts have committed an error in convicting the accused for the offence punishable under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d though it is the contention of the complainant that due was for Rs. 6,00,000/-, in the last week of July-2008 cheque was given. The other contention of the learned counsel for the petitioner that Ex. P.9(a) discloses balance of Rs. 2,90,604/- but claim is more than the said amount. Ex. P.9(a) discloses income tax assessment for the year 2008-09 and balance sheet as on 31.03.2008, hence, it is clear that during the month of March-2008, current assets receivables is mentioned as Rs. 2,90,604/-. The very case of the complainant is that the transactions have taken place between April-2007 and July-2008 and as on the date 31.03.2008 balance was Rs. 2,90,604/- and this assessment pertains to the year 2008-09 and hence, it is clear that much amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have not been counter signed by the petitioner herein. 9. Apart from that, when the cheque was issued there is a presumption under Section 118 and 139 of NI Act that the same is given towards debt or legal liability and the revision petitioner has not disputed issuance of cheque and only his defence is that during the course of transactions blank cheque was collected and in order to prove the said fact, even he did not choose to enter into the witness box and not adduced any rebuttal evidence. During the course of cross-examination of P.W. I also there is no effective cross-examination to rebut the evidence of the complainant. It is settled law that accused can rebut the evidence of complainant by effective cross-examination and also adduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not able to contest the existence of a legally enforceable debt or liability and the legal notice was issued to the revisional petitioner and acknowledging the legal notice, he has not given any rebuttal reply and when such being the circumstances, it is further observed that when the accused not denied signature on the cheque belongs to him the statutory presumption come into play and the same has not been rebutted even with regard to the material submitted by the complainant and hence, this judgment is helping either side i.e., complainant in the case on hand also cheque was admitted and issue of legal notice was admitted and transaction between the revisional petitioner and the respondent is admitted and the revisional petitioner has ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
