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2024 (6) TMI 840 - GAUHATI HIGH COURTDishonour of Cheque - insufficiency of funds - presumption under Sections 118 and 139 of the N.I. Act - discharge of legally enforceable debt or not - failure to pay back the amount within 15 days of receipt of the demand notice - HELD THAT - The learned trial court had found that the accused/petitioner had issued cheque No. 254228, dated 12.09.2009, drawn on UCO Bank, Silchar Branch, Cachar, for an amount of Rs. 5,00,000/- to the complainant/respondent No. 1 in discharge of his liability. The learned court below had also drawn presumption in favour of the holder of the cheque in due course, in view of the provision of Sections 118 and 139 of the N.I. Act. It is to be noted here that Section 118 of the N.I. Act lays down that until the contrary is proved, it shall be presumed that every Negotiable Instrument was made or drawn for consideration. Section 139 of the N.I. Act contemplated that unless the contrary is proved, it shall be presumed that the holder of the cheque received the cheque of the nature referred to in Section 138 of the N.I. Act for the discharge, in whole or part of any debt or liability. Admittedly, the petitioner had not lodged any information to Police about losing of his cheque. Such a plea was also not taken in his statement under Section 313 of the Cr.P.C. He had also not adduced any evidence in support of claim of the cheque being lost. On these counts a reasonable doubt arises about the veracity of the claim of the petitioner and as such the learned trial court and also the learned first appellate court had rightly disbelieved the version of the petitioner. In the instant case, the petitioner had not disputed the cheque in question and his signature thereon and as such, the statutory presumption under Sections 118 and 139 of the N.I. Act is very much available in all its plenitude and amplitude. The petitioner had failed to rebut such a presumption. Neither he appeared in the witness box to adduce evidence to rebut the statutory presumption, nor could he show any material available on the record, to rebut the presumption. This revision petition devoid of merit and accordingly, the same stands dismissed. Issues Involved:
1. Legality, propriety, and correctness of the Judgment and Order dated 27.04.2018. 2. Service of legal notice. 3. Existence of legally enforceable liability. 4. Invocation of jurisdiction u/s 311 of the Cr.P.C. 5. Presumption under Sections 118 and 139 of the N.I. Act. Summary: Issue 1: Legality, propriety, and correctness of the Judgment and Order dated 27.04.2018 The petitioner challenged the judgment and order dated 27.04.2018 passed by the Additional Sessions Judge, Cachar, Silchar, which upheld the judgment of the Additional Chief Judicial Magistrate convicting the petitioner u/s 138 of the Negotiable Instruments Act, 1881. The petitioner was sentenced to simple imprisonment for one year and to pay Rs. 7,00,000/- to the complainant. Issue 2: Service of legal notice The petitioner argued that the legal notice was not served upon him as it was received by one Supriti Debnath, whose relationship with the petitioner was not established. The court referred to the decision in *C.C. Alavi Haji vs. Palapetty Muhammed & Anr.*, stating that when a notice is sent by registered post with the correct address, it is presumed to be served unless proven otherwise. The court found that the notice was properly addressed and presumed to be served. Issue 3: Existence of legally enforceable liability The petitioner contended that the complainant failed to establish any legally enforceable liability. The court noted the statutory presumption u/s 118 and 139 of the N.I. Act, which presumes that the cheque was issued for discharge of debt or liability. The court found that the petitioner did not rebut this presumption and failed to provide evidence supporting his claim that the cheque was lost and a stop payment instruction was issued. Issue 4: Invocation of jurisdiction u/s 311 of the Cr.P.C. The petitioner argued that the trial court failed to invoke its jurisdiction u/s 311 of the Cr.P.C. to examine certain witnesses. The court held that it was the petitioner's primary duty to rebut the statutory presumption and that there was no valid reason shown for the court to invoke this discretionary power. Issue 5: Presumption under Sections 118 and 139 of the N.I. Act The court reiterated the presumption under Sections 118 and 139 of the N.I. Act, which places the burden on the accused to prove that the cheque was not issued for any debt or liability. The petitioner failed to rebut this presumption, and the court found no fault with the findings of the trial court and the first appellate court. Conclusion: The court dismissed the revision petition, finding no merit in the petitioner's arguments and upheld the judgments and orders of the lower courts. The petitioner was found guilty u/s 138 of the N.I. Act, and the statutory presumption in favor of the complainant remained unrebutted.
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