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TMI Blog2025 (3) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... had obtained a loan of Rs. 3,50,000/- from the respondent on 3rd July 2006 through an overdraft facility. At the time of obtaining the loan, she issued two security cheques bearing Nos. 010721 and 010722. Due to a default in repayment, the respondent deposited the first cheque (No.010721) drawn on 10th February 2007 for the amount of Rs.3,75,976/-, which was dishonoured. Following a legal demand notice from the respondent's advocate, the respondent filed Criminal Case No. 135 of 2007 under Section 138 of the NI Act on 4th April 2007. The appellant paid the cheque amount before the JMFC, Kalwan Court, on 23rd September 2016, following which the respondent withdrew the prosecution, and the appellant was acquitted on the same date. 3. In the interregnum, the appellant was allegedly granted another loan of Rs. 11,97,000/- on 25th July 2008 by the respondent. Due to an alleged default in repayment of the loan amount and interest accrued thereon, the respondent deposited the second cheque (No. 010722) drawn on 3rd October 2016 for the amount of Rs. 27,27,460/- which was dishonoured on 14th October 2016. The respondent issued a legal notice dated 11th November 2016, claiming that the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law. 7. The learned counsel appearing for the respondent submitted that there exists a presumption under Section 139 of the NI Act in favour of the cheque holder. Thus, it shall be presumed that the respondent received the cheque for the discharge of debt by the appellant, and this presumption can only be rebutted by adducing evidence during the trial. He contended that the complaint contained all the essential ingredients and that there was no suppression of material facts warranting dismissal of the complaint. No provision of Chapter XVII of the NI Act mandates the supply of the documents relied upon in the demand notice. Additionally, he submitted that the replies of the appellant to the respondent dated 15th November 2016 and 28th November 2016 were not material for establishing a prima facie case for issuing the process. The counsel for the respondent also filed an additional counter-affidavit, producing a letter dated 29th November 2016, written by the appellant to the respondent, seeking copies of the statements of various loan accounts maintained by her and her husband, which were duly provided. It was submitted that the appellant acknowledged receipt of the same by aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to examine the complainant on oath and witnesses, if any, present and reduce the substance of such examination into writing. What is reduced into writing is required to be signed by the complainant and witnesses, if any. 10. Recording the complainant's statement on oath under Section 200 of the CrPC is not an empty formality. The object of recording the complainant's statement and witnesses, if any, is to ascertain the truth. The learned Magistrate is duty-bound to put questions to the complainant to elicit the truth. The examination is necessary to enable the Court to satisfy itself whether there are sufficient grounds to proceed against the accused. After considering the complaint, the documents produced along with the complaint, and the statements of the complainant and witnesses, if any, the learned Magistrate has to apply his mind to ascertain whether there is sufficient ground for proceeding against the accused. If he is satisfied that there is sufficient ground to proceed against the accused, then the learned Magistrate has to issue a process in terms of sub-Section (1) of Section 204 of the CrPC. The corresponding provision under the BNSS is Section 227. Setting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque by issuing a notice in writing within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of the cheque must fail to make payment of the amount covered by the cheque within 15 days of the receipt of the notice. 13. In the present case, a statutory notice under Section 138 of the NI Act was issued by the advocate for the respondent on 11th November 2016 to the appellant. The notice proceeds on the footing that the respondent, a Co-operative Credit Society, is providing financial assistance to its members and is also carrying on banking business. The allegation in the notice served to the appellant is that the appellant was a member of the credit society and had taken an overdraft facility from the respondent in the sum of Rs.11,97,000/-. Paragraph 1 of the notice specifically relies upon the fact that the appellant has executed necessary documents and that the appellant has agreed and acknowledged to make repayment of the amount advanced with interest. Thereafter, the notice proceeds to describe how the cheque issued by the appellant in the sum of Rs.27,27,460/- was returned unpaid. 14. With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th November 2016, the appellant informed the respondent that by filing a written application, the appellant had demanded certain documents, which had not been provided. What is pertinent to note is that the respondent does not deny the receipt of the reply dated 28th November 2016. No reply was sent by the respondent pointing out that the documents were supplied. Even in the letter dated 13th December 2016, the appellant made the same grievance regarding the non-supply of the documents relied upon in the demand notice. Before filing the complaint, the respondent failed to respond to the said letter. 17. A counter to this appeal was filed by the respondent on 7th August 2024, in which it is not even a case made out that requisite documents, as demanded by the appellant, were handed over to her on 29th November 2016. A case was belatedly made out for the first time by filing an additional affidavit on 9th January 2025 that statements of loan account sought by the appellant were furnished to her and her signature appears on the statements. As stated earlier, though it is claimed that the appellant's signatures appear on the said documents acknowledging the receipt, no date is mention ..... X X X X Extracts X X X X X X X X Extracts X X X X
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