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TMI Blog2015 (9) TMI 1068X X X X Extracts X X X X X X X X Extracts X X X X ..... on not claimed" as per Ex.P4/return cover. Therefore, the appellant preferred a private complaint against the respondent/accused under Section 138 of the Negotiable Instruments Act. Crl. A.No.802 of 2011 (C.C.No.6787 of 2002): (ii) The appellant herein as a complainant preferred a private complaint stating that the respondent/accused had borrowed loan from the complainant and to discharge the said liability, he had given Ex.P1 cheque dated 04.09.2002 for Rs. 50,000/-. When the appellant presented the cheque for encashment on 04.09.2002, it was returned as "insufficient funds" on 05.09.2002 vide Ex.P2 return memo. Even though the appellant issued Ex.P3 statutory notice to the respondent to his correct address on 14.09.2002, the same was returned undelivered on 30.09.2002 with an endorsement "party out of station not claimed" as per Ex.P4/return cover. Therefore, the appellant preferred a private complaint against the respondent/accused under Section 138 of the Negotiable Instruments Act. 3. The trial Court has taken cognizance of an offence, after following the procedure and recording sworn statement. Since the accused pleaded not guilty, the trial Court examined P.W.1 and marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fatal to the case of the prosecution. The Trial Court has considered all the aspects in proper perspective and came to a correct conclusion. Hence, the learned counsel for the respondent prayed for dismissal of the appeal. To substantiate his argument, the learned counsel for the respondent relied upon the following decisions: (i) 2012 (2) MWN (Crl.) (DCC) 141 (Madras) (T.R.Palanisamy v.Hariharan); (ii) CDJ 2008 MHC 4594 (Mad.) (Kalavally v. Parthasarathy); (iii) 2014 (8) Scale 669 (Ramdas v. Krishnanand); (iv) (2008) 4 Supreme Court Cases 54, Krishna Janardhan Bhat v. Dattatraya G.Hegde. 6. Considered the rival submissions made by both sides and perused the typed set of papers. 7. Once the issuance of the cheque has been admitted, the appellant/complainant is entitled to invoke presumption under Section 118 and 139 of the Negotiable Instruments Act that the cheque has been issued for discharging the legally subsisting liability. The said presumption is a rebuttable one and so, the burden is upon the respondent/accused to prove that the cheque was not issued for discharging the legally subsisting liability but only as a security. 8. Now this Court has to decide whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2(14) of the Indian Stamp Act and Section 20 of the N. I. Act, it has to be presumed that the document was executed by the defendants and therefore, under Section 118 of the Negotiable Instruments Act, presumption shall be drawn in favour of the plaintiff that the document was executed for consideration and the defendants have not discharged their burden that no consideration was passed under the document. 10. On the other hand, the learned counsel for the respondent relied on the following decisions: 10.1. In the decision reported in 2012 (2) MWN (Cr.) (DCC) 141 (Mad.), T.R.Palanisamy v. Hariharan, it was held that nonfiling of I. T returns is fatal. It is appropriate to incorporate paragraphs 4[d] and 4[e] of the said decision: "4[d] Much was said about the presence of entry in the accounts maintained by the appellant for the purpose of income tax with regard to the cheque loan. In this regard, PW1, the complainant would depose that in the statement of account ending with 31.03.2000, he has given the particulars with regard to the loan to his Auditor. Again he reiterated the same evidence in his cross examination. But he has not produced the income tax return to the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the stand of the complainant was that he had given a hand loan of Rs. 1,75,000/- to the accused-appellant. We find no material on record in support of the claim of the complainant giving hand loan to the accused-appellant. There was also no calculation of account or stipulation of any interest on the alleged loan amount to show as to how the amount of Rs. 5,00,000/- was figured, in return of a hand loan of Rs. 1,75,000/- if at all taken by the appellant from the complainant. It is also not on record whether there was sufficient balance amount or not in the bank account of the accused when the cheque was dishonoured by the Bank. The Complainant himself stated in the crossexamination that after the Cheque was returned without payment, he has not made any enquiry with the Bank as to whether sufficient funds were available or not in the account of the accused." In the abovesaid case, there was a sale agreement for purchase of 3 acres of land between the parties to the proceedings and the appellant paid Rs. 30,000/- as advance and handed over a Cheque for Rs. 5,00,000/-. That has been rebutted by way of examination of evidence of D.W.2 and D.W.6. However, in the instant case no rebutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were issued which was subsequently filled up and complaint has been filed was denied by him. 12. It is also pertinent to note that the respondent herein has given a complaint against this appellant. In the said case, the appellant was arrested and remanded to judicial custody. Thereafter, the appellant herein filed Crl.O.P.Nos.6806 and 6807 of 2007 to quash the said FIR and that has been quashed. Thus, it would reveal that the respondent herein has admitted the issuance of the Cheque. So, this Court ought to have invoked the presumption under Section 118 and 139 of the Negotiable Instruments Act that the cheque has been issued for discharging the legally subsisting liability. Now, it is the duty of the respondent/accused to rebut the presumption that he had borrowed the money and repaid the same and that the cheque has been issued only as a security. However, except the denial made by P.W.1, no other evidence is available. The respondent herein has not filed any document to show that the amount has been repaid. As per the decision of the Hon'ble Apex Court, it is the duty of the respondent/person who plead discharge must prove the same. But the respondent herein has not let in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presumption under Section 118 and 139 of the Negotiable Instruments Act that the cheque has been issued for discharging the legally subsisting liability, which is a rebuttable presumption. However, the presumption has not been rebutted by this respondent/accused. He has not probabilised his defence by preponderance of probabilities. Hence, I am of the view that the cheque has been issued for discharging the legally enforceable debt. When the cheque was presented for encashment, it was returned as 'insufficient funds' on 11.09.2002. Hence, statutory notice has been issued to the respondent on 14.09.2002. However, the same was returned as could be evidenced by the return cover and postal receipt. Since the respondent/accused neither repaid the amount nor sent any reply, the appellant herein had preferred a complaint. In such circumstances, I am of the view that the appellant herein has proved the guilt of the accused under Section 138 of the Negotiable Instruments Act. 16. It is true that as per the dictum of the Hon'ble Apex Court relied on by the learned counsel for the respondent reported in (2008) 4 Supreme Court Cases 54, Krishna Janardhan Bhat v. Dattatraya G.Hegde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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