M/S Lovely Poultry And Another vs Ved Parkash (Since Deceased) Now Represented By Ashwani Narang

Sureshwar Thakur, J

The petitioners are accused in complaint bearing CIS No. 290 of 2014 dated 7.5.2014, titled as Ved Parkash versus M/s Lovely Poultry and another. The complaint (supra) is constituted under the provisions of Section 138 of the Negotiable Instruments Act, and, is yet subjudice before the learned Judicial Magistrate Ist Class, Kaithal. The complaint (supra) has progressed upto the stage of closure of proceedings, drawn under Section 313 Cr.P.C. The petitioner-accused, subsequent to the recordings of his statement under Section 313 Cr.P.C., chose to adduce defence evidence, and, thereafter moved an application, cast under Section 45 of the Indian Evidence Act, before the learned trial Magistrate concerned. However, thereons a disaffirmative order, as carried in Annexure P-4, became recorded. The petitioner becomes aggrieved therefrom, and, has strived to cast, an onslaught thereagainst through his instituting the instant petition.

The dishonoured negotiable instrument carries a sum of Rs. 20 lacs.

The learned counsel for the petitioners submits, that he had attempted to rebut the statutory presumption available to the holder in due course of the dishonoured negotiable instrument, who is the complainant, through his attempting to establish his financial incapacity, hence to lend him a sum of Rs. 20 lacs.

However, during the course of the complainant, stepping into the witness box, he had tendered into evidence, his income tax returns, appertaining to the years 2013-2014, and, 2014-2015, and, it led the learned trial Magistrate concerned, to make thereons exhibit marks, inasmuch as, CW3/A, and, CW3/B. At the above stage, the learned counsel for the accused, could well have made a protest against the makings of exhibit marks thereons, but since no protest became made there, therefore, it appears that the makings of the exhibit marks, upon the above ITRs, rather became acquiesced by the counsel for the accused. The sequel of the above is that, since reiteratedly at the appropriate stage (supra), inasmuch as, at the stage of the complainant stepping into the witness box, in proof of the allegations, as carried in the complaint, the learned defence counsel, did not choose, to rebut the statutory presumption available to the holder in due course of the negotiable instruments, inasmuch as, qua the amount carried in the cheque, being towards the discharge of a legal, and, contractual liability, rather through apt rebuttal evidence, comprised in the meteings of suggestions, to prima facie establish the financial incapacity at the relevant phase, of the complainant, to lend him moneys. If so, the above lack of effort on the part of the accused, to at the relevant stage, take to rebut the above statutory presumption, cannot prima facie leverage him, to avail the right of adducing rebuttal evidence, and that too, at a much belated stage, inasmuch as, even after the completion of the proceedings, drawn under Section 313 Cr.P.C. If the above belatedly availed remedy is permitted to be accorded to the accused, thereupon, it would work against the rule of estoppel, arising from the above, besides may ultimately prejudice the trial, in respect of the petition complaint.

Be that as it may, qua the ITRs concerned, and, as appertaining to the period when the borrowings were made by the accused from the complainant, and, whereons the above unprotested exhibit marks were made, on theirs being tendered into evidence, except for a challenge to the authenticity of the signatures of the complainant, being made thereons, rather no challenge is made, that the PAN card numbers, as made thereons, were forged, and, fictitious, and, nor any further averment is made in the application, that in pursuance to the filing of the above ITRs by the complainant, before the Income Tax department, the amount, as carried thereins, became never deposited through a challan, before the bank concerned. Therefore, prima facie it appears that the Income Tax Department, did not raise any objection with respect to the valid capacity of the complainant to file returns, in respect of his income appertaining to the relevant phase.

Consequently, there is no merit in the petition, and, the same is hereby dismissed.