Search Results Page

Search Results

1 - 10 of 16 (0.23 seconds)
Smt.C.Shanthi vs Sri. G.Santhosh on 17 February, 2020 cites

Rangappa vs Sri Mohan on 7 May, 2010

16. The Accused in his defence has denied the liability in question and issuance of cheques in question towards discharge of liability in question as claimed by the complainant in the complaint. It is also defence of the Accused that, the complainant has forcibly taken the cheques in question from him on 13.6.2016 for that, he lodged the complaint before the jurisdictional police station, however in view of non taking action against the complainant he 15 C.C.No.21013/2016 J has filed a private complaint before the 4th ACMM, Court, Bengaluru ion PCR No.12577/2016 for adjudication. It is also the defence of the Accused that, he sold his property bearing No. 36 of Sy.No.17 measuring to an extent of 60 x 42 sq. ft. situated at Chikkakallsandra Village, Uttarahalli Hobli, Bengaluru in favour of the complainant on 20.4.2015 through registered sale deed for total sale consideration of Rs.1,31,00,000/- and in respect of disturbance by the third parties over the said property, a false case has been registered before the City Civil and Session Judge Court, Bengaluru in OS.No.7884/2015 and now by misrepresenting the facts and during subsistence of sale deed and after constructions and other works in the property sold by him the complainant with ill intention of recovering the said sale consideration amount received by him during the execution of sale deed in an illegal manner with active support of sub inspector of Subramanyapura Police forcibly took the cheques in question and filed the false case though there is no legally enforceable debt. It is settled law that, once the issuance of the cheque infavour of holder in due course is admitted by the drawer, 16 C.C.No.21013/2016 J presumption can be drawn about the existence of legally recoverable debt U/s.139 of N.I. Act, terms in favour of holder in due course. The Hon'ble Apex Court in Rangappa Vs. Mohan case reported in 2010(11) SCC 441, has held that, "issuance of the cheque would create a presumption with respect to legally enforceable debt in favour of the payee of the cheque", however, the said presumption is rebuttable. In the present case, it has tobe examined as to whether the Accused has rebutted the presumption successfully or not by examining oral and documentary evidence adduced by the both parties.
Supreme Court of India Cites 11 - Cited by 9567 - K G Balakrishnan - Full Document

M/S.Shree Daneshwari Traders vs Sanjay Jain on 21 August, 2019

with evidence adduced by the complainant the courts below ought to have raised presumption U/s.139 of N.I. Act. Hence, from careful reading of the principles of law laid down by the Hon'ble Apex Court in the above referred decision makes it clear that, even though the complaint contains no specific averments with regard to issuance of the cheques , in such circumstances, if the complainant established the same by producing his oral and documentary evidence to prove that, there is a legally enforceable debt and cheques were issued to discharge the said legally enforceable debt , in such circumstances court can raise presumption U/s.139 of N.I. Act. On careful perusal of the legal notice, complaint and evidence adduced by the complainant in the present case it appears that, the complainant has not averred in her legal notice or complaint regarding the transaction in question and liability of the Accused in question and issuance of the cheque towards the liability in question by the Accused. It is also relevant here to mention that, even though the complaint contents no specific averments that, cheques were issued and existence of legally enforceable debt and cheques were issued to 21 C.C.No.21013/2016 J discharge of legally enforceable debt but in the evidence of SPA holder of the complainant i.e. PW.1 also he nowhere stated about the nature of transaction and liability of the Accused and issuance of the cheque by the Accused towards discharge of liability. Hence, it goes to show that, the averments made in the complaint is bald without disclosing the factual aspects as to how, when and in what connection the huge liability of Rs.1,31,00,000/- arose and has not averred on which date the liability arose, quantum of liability, and to whom and when the cheques in question were given and for what purpose the cheques were given. The complainant in her complaint and in the evidence of her SPA holder i.e PW.1 has stated with regard to liability is only in one sentence i.e. "towards payment and discharge of his liability (which is legally recoverable) the Accused has issued five cheques for a total sum of Rs.1,31,00,000/- only in favour of the complainant' , therefore except the said sentence the complainant has not averred with regard to existence of legally recoverable debt or liability and issuance of the cheques in question by the Accused towards discharge of legally enforceable debt or liability. In 22 C.C.No.21013/2016 J addition to that, the SPA holder of the complainant/ PW.1 in his cross-examination at page No.5 has admitted that, " It is true to suggest that, I have not pleaded either in the legal notice or in my complaint or in my affidavit about the purpose for which I have collected the cheques in dispute from the Accused". Hence, the very admission of PW.1 makes it clear that, the complainant either in her notice or in the complaint or her SPA holder i.e PW.1 in his evidence has not stated about the purpose for which she had collected the cheques in dispute from the Accused, thus in view of the principles of law laid down by the Hon'ble Apex Court of India in the above referred decision, it can be held that, there was no existence of legally recoverable debt in the absence of clear and specific averments in the complaint with regard to factual basis to show existing debt or liability or necessary ingredients to maintain the complaint in the question, therefore the complainant has miserably failed to prove or show there was an existence of legally recoverable debt or liability against the Accused as claimed by the complainant in this complaint. In view of the principles of law laid down 23 C.C.No.21013/2016 J by the Hon'ble Apex Court in the decision referred above the complainant atleast her SPA holder could have stated about the nature of transaction in question and liability of the Accused and the cheques were issued towards legally enforceable debt but no oral or documentary evidence adduced by the complainant so as to raise the presumption U/s.139 of N.I. Act, that, there was existence of legally enforceable debt and the cheques in question were issued to discharge the said legally enforceable debt, in such circumstances, the complainant has miserably failed to prove to raise the presumption U/s.139 of N.I. Act in respect of the cheques in question.
Supreme Court of India Cites 8 - Cited by 164 - R Banumathi - Full Document
1   2 Next