RAVISHANKAR Vs. SASIKANTH AND ORS.

JUDGEMENT

(1.) The first respondent herein has filed a private complaint under Section 138 of The Negotiable Instruments Act against the accused/revision petitioner herein contending that there were past transaction between the complainant/first respondent and the accused/revision petitioner herein in purchasing of yarn and during the course of such business the complainant/first respondent herein supplied yarn as per the request of the accused/revision petitioner and invoice was raised. However, the accused/revision petitioner did not pay the amount towards supply of yarn. After repeated demands, the accused/revision petitioner issued a cheque dated 11.08.2005 for a sum of Rs. 2,24,078/- towards purchase of yarn and on presentation of the cheque, it was dishonored for the reason "account closed". Therefore, on 04.02.2006, the complainant/first respondent issued a statutory notice. Even though the statutory notice was received by the accused/petitioner herein, he has neither paid the cheque amount nor sent any reply. In those circumstances, the complainant/first respondent herein filed the private complaint in S.T.C. No. 1545 of 2006. Upon trial, the trial court found the petitioner/accused guilty of the offence under Section 138 of the Negotiable Instruments Act and sentenced him to undergo simple imprisonment for a period of two years and to pay a sum of Rs. 2,25,000/- as compensation to the complainant/first respondent herein under Section 357(3) of Code of Criminal Procedure. Aggrieved by the same, the revision petitioner filed Criminal Appeal No. 424 of 2007 and it was dismissed by the Appellate Court on 25.01.2008. As against the same, the present Criminal Revision Case is filed. Pending the above Criminal Revision Case, by order dated 08.07.2008, this Court suspended the substantial portion of sentence imposed against the petitioner.

(2.) The learned counsel appearing for the petitioner would vehemently contend that the complainant/first respondent is bound to prove the past transaction between the accused/revision petitioner and the complainant/first respondent. According to the learned counsel for the petitioner/accused, the complainant, in his deposition, has deposed that there were business transaction between the complainant and the accused from 2006. While so, the complainant failed to prove as to how the cheque could have been issued on 11.06.2005 when admittedly there were transaction between the parties only from 2006. It is next contended on behalf of the petitioner that even though the cheque was dated 11.06.2005, for the reasons best known, the complainant presented it only on 23.01.2006 after a period of four months. This delay on the part of the complainant in presenting the cheque after four months is unexplained and it vitiates the complaint. Further, the trial court as well as the appellate Court failed to note that the complainant did not make any entry in the ledger about the purchase price and quantity of the goods. Further, to support the entries in the ledger, the complainant did not produce the day book. In any event, the complainant did not produce any material evidence to show the supply of goods to the accused/petitioner herein and therefore, the entire complaint is vitiated.

(3.) In support of the above contentions, the learned counsel for the accused/revision petitioner relied on the decision of the Honourable Supreme Court in the case of (John K. Abraham vs. Simon C. Abraham and another, 2014 2 SCC 236) to contend that in a proceeding under Section 138 of the Negotiable Instruments Act, for the purpose of drawing a presumption as contemplated under Section 118 read with Section 138 of the said Act, the burden lies on the complainant to show that he had the requisite funds for advancing the loan amount and that the cheque was issued by the accused for repayment of the said amount. If the complainant discharges such burden, thereafter, the burden shifts on the accused/revision petitioner to disprove the same. Relying on the aforesaid decision, the learned counsel for the accused/petitioner would contend that in the present case, the complainant/first respondent has not filed the income tax return evidencing the liability of the accused towards supply of goods and the payment to be made by the accused thereof.