TMI Blog2023 (10) TMI 1099X X X X Extracts X X X X X X X X Extracts X X X X ..... ame address has been mentioned in the complaint. The accused has been served on the said address, as depicted in the summons issued against the accused. Moreover, the accused has not disputed the said address. Even otherwise, for the sake of argument, if this notice was not received by him, no efforts have been made by the accused to make the payment of the cheque on the first available opportunity, when, he had appeared before the learned trial Court. In such situation, the said argument is not liable to be accepted - the learned trial Court has rightly held that the presumption under Section 118 of the N.I. Act has rightly been drawn in favour of the complainant. So far as the argument of learned counsel for the petitioner-accused qua the fact that in the document Ext. DW-4/A, the date of payment of a sum of Rs. 60,000/-is 22.09.2015, which is contrary to the document Ext. CW-1/D, is concerned, when in the document Ext. CW-1/F, which is agreement for loan, the total amount, which has been paid as loan is Rs. 1,60,000/-, then, the variation, which has been highlighted, is inconsequential. From this evidence, the petitioner could not rebut the presumption under Section 118 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has issued a cheque No. 260921 dated 10.06.2016 for a sum of Rs. 1,46,400/-drawn at UCO Bank, Dhalli, in discharge of part payment of existing debt/liability, in favour of complainant. 5.2. Elaborating its stand, it is the case of the complainant that the complainant-Company has given a loan of Rs. 1,60,000/-dated 22.09.2015 to the accused. The terms and conditions were documented. The cheque, in question, given by the accused, was presented to the banker on 13.06.2016, which was further sent to the banker of the accused, but, the same was dishonoured for the reason 'insufficient funds'. The intimation with regard to the dishonour of the cheque was received by the complainant on 13.06.2016. Thereafter, the requisite legal notice was issued, but, despite the notice, neither the payment was made nor the same was replied. After waiting for the statutory period, the complainant has filed the complaint before the learned trial Court. 6. The learned trial Court found a prima-facie case, for the commission of the offence punishable, under Section 138 of the N.I. Act, as such, the accused has been summoned. From the stand, as taken by the complainant, the learned trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of probabilities. 15. Elaborating his stand, it the case of the accused that the learned trial Court has not considered the fact that on 22.09.2015, only loan of Rs. 60,000/-was advanced and amount of Rs. 1,00,000/-was disbursed to him on 19.10.2015, after a gap of one month and, as such, the case set-up by the complainant-Company that on 22.09.2015, total loan of Rs. 1,60,000/-was disbursed to him, is not liable to be accepted. To buttress his contention, learned counsel for the accused has relied upon documents Ext. CW-1/D, Ext. CW-1/F, Ext. CW-1/Q. The evidence of DW-4 remain unrebutted. 16. On the basis of above facts, a prayer has been made to allow the revision petition, by setting aside the judgment of conviction and order of sentence as passed by the learned trial Court and affirmed by the learned First Appellate court. 17. Per contra, Ms. Kusum Chaudhary, Advocate vice Ms. Seema Guleria, Advocate has supported the judgment of conviction and order of sentence, as affirmed by learned First Appellate Court, on the ground that the same has rightly been considered by the learned trial Court and the judgment of conviction and order of sentence have rightly been aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... witness has further admitted that Sumitra of their company is facing 8-10 trial in 138 cases and except that no other criminal case is registered against her. Legal notice Ext. DX-1 has not been received by the company. Sumitra was having 2-3 loan accounts with the bank. 2-3 cases have been stated to be pending against Sumitra. He has denied all the suggestions, which were put to him, to probabilise the case of the accused. In the company, they use to charge 27% flat interest per annum, but, according to him, they were not having any sanction letter from the RBI. 22. To rebut this evidence, accused has examined DW-1 Dinesh Kumar son of Paras Ram. According to him, the accused has obtained a loan of Rs. 1,60,000/-from the complainant-company. He has repaid the amount in the month of September, 2016 by depositing two installments of Rs. 50,000/-and Rs. 22,000/-He has paid these installments to Sumitra, who was working as Recovery Agent of the complainant-company. The accused has taken a loan of Rs. 1,60,000/-. Company has also issued the receipt in favour of the accused in the year 2016. 23. DW-2 Rakesh Kumar is the real brother of Sumitra, who, as per this witness, was workin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque return memo was issued on 13.06.2016, whereas, the requisite notice was given on 16.06.2016. The said notice was sent to the accused vide receipts Ext.CW-1/M and Ext. CW-1/N. One notice was issued at his address which is reproduced as under:- Dinesh Kumar son of Sh. Bhagat Ram R/o Village Halotu, P.o. Balghahar, Tehsil Theog, District Shimla, H.P. 28. The same address has been mentioned in the complaint. The accused has been served on the said address, as depicted in the summons issued against the accused. Moreover, the accused has not disputed the said address. Even otherwise, for the sake of argument, if this notice was not received by him, no efforts have been made by the accused to make the payment of the cheque on the first available opportunity, when, he had appeared before the learned trial Court. In such situation, the said argument is not liable to be accepted. 29. On the basis of above documents, the learned trial Court has rightly held that the presumption under Section 118 of the N.I. Act has rightly been drawn in favour of the complainant. 30. So far as the defence, as taken by the accused, in this case is concerned, from the statements of DW-1 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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