9911796707
TMI Blog2021 (2) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... private complaint given by the complainant on the allegation that the revision petitioner owed an outstanding sum of Rs. 10,90,032/- in connection with his business transactions that he had with the respondent/complainant's Company; the revision petitioner had issued two cheques dated 16.08.2012 and 20.08.2012 for the sums of Rs. 5,00,000/- and Rs. 4,00,000/- respectively towards discharging the above said dues; but when the respondent/complainant presented them for collection, they got returned for the reason 'funds insufficient'. After issuing mandatory pre-legal notice on 08.09.2012 and on complying the legal mandates, the respondent/complainant has filed a complaint against the petitioner for the offence under Section 138 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the respondent/complainant, the goods relating to the invoices (Ex. P6 series) have been delivered only vide lorry receipts-Exs. P7 & P8; but it is seen from Exs. P7 & P8 that a lesser quantity of goods have been delivered and hence, there cannot be any legally enforceable liability; the cheques were issued by the petitioner/accused as a security during the usual business transactions and they were not meant to discharge any liability; the learned trial Judge without properly appreciating the evidence on record had found the accused guilty and hence, this revision case should be allowed. 8. The learned counsel for the respondent/complainant submitted that as per the accounts maintained by the complainant Company, the accused owes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , have been purchased by the petitioner. Invoices which are produced as Ex. P6 series would show that the petitioner/accused had purchased the said goods on the said date. Though the petitioner/accused does not deny the genuineness of the invoices (Ex. P6 series), he claims that the goods so purchased against the above invoices were not delivered to him and that is evidenced through Exs. P7 & P8-lorry receipts. 11. It is further submitted by the learned counsel for the petitioner/accused that even in the evidence of P.W. 1, he had admitted that the goods pertaining to Ex. P6 series have been transported through lorries vide Exs. P7 & P8. The claim of the respondent/complainant is not only basing on the invoices but also on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the reason 'Funds insufficient'. Immediately thereafter, the respondent/complainant has sent a legal notice on 08.09.2012. The petitioner/accused has also sent a reply notice on 22.09.2012. In the reply notice dated 22.09.2012, the petitioner/accused has not stated that the goods purchased by him through Ex. P6 series-invoices were not delivered to him. Neither had he filed any complaint against the respondent/complainant that he had misused the cheques issued for security or that he had not supplied the goods which had actually purchased by him. No doubt, P.W. 1 has stated in his evidence that vide the lorry receipts dated 16.07.2011 and 26.05.2012, the goods were sent to the petitioner. 13. According to the respondent/complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be filed. 15. It is to be noted that in the cases filed for dishonour of cheques, the liability fastened on the holder of the cheque is not akin to the liability to prove a civil claim. It is sufficient if the complainant could show prima facie materials which would make his case probable. Moreover, when the drawer of the cheques does not dispute his signatures on the cheques, the initial presumption as contemplated under Sections 118 and 139 of the Negotiable Instruments Act would be in favour of the holder of the cheques. Though it is always open to the petitioner/accused to refute the initial presumption by way of producing rebuttal evidence, such rebuttal proof should be such a standard that it should tilt the preponderance of probab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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