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TMI Blog2010 (2) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,900/-) to the accused on credit. In order to make payment of the bill, accused issued cheque No. 933950 dated 22.11.2005 for ₹ 46,900/-drawn on the Amravati District Central Cooperative Bank Limited, Branch at Anjangaon Surji in the favour of complainant. Complainant presented the said cheque for encashment through his bankers State Bank of India, Amravati Branch. However, the cheque was returned unpaid on account of insufficiency of funds. Complainant served the accused with legal notice dated 8.9.2006 and demanded payment of ₹ 46,900/-. Even though the accused received said notice on 11.9.2006, but instead of complying with the demand made therein, he issued false reply and that necessitated filing of complaint by appellant against accused. 4. It was the defence of accused that there was no such dealing, but he had agreed to buy a tractor and equipments for a total sum of ₹ 4,40,106/-. Five blank cheques were given only as a security for transaction between the parties. Complainant had already drawn sums of ₹ 50,000/-plus ₹ 50,000/-by using two cheques and ₹ 10,106/-were paid in cash to him by the accused and he had mortgaged his land to r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resumption created by the provision cannot be said to be rebutted. (See also, V.D. Jhingan v. State of UP reported in AIR 1966 SC 1762; Sailendranath Bose v. The State of Bihar reported in AIR 1968 SC 1292 and Ram Krishna Bedu Rane v. State of Maharashtra reported in 1973 (1) SCC 366. We will, therefore, have to consider whether in the case before us, the accused had supported his defence by any proof sufficient to rebut the presumption drawn against him. It is further submitted that exhibit 27 Invoice Credit dated 22.11.2005 was duly signed by the respondent-accused for having purchased the three agricultural equipments described therein in consideration of which Cheque No. 933950 was issued by the respondent/accused under his signature drawn on the Amravati District Central Cooperative Bank Limited, Anjangaon Surji Branch for a sum of ₹ 46,900/-. Learned trial Magistrate could not have ignored the documentary evidence of the transaction of credit-purchase of three articles made by the accused under his own signature. The cheque was dishonoured and, therefore, the respondent has committed deemed offence punishable under Section 138 of the Act. The accused did not establish t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/-. Therefore, it was taken that the complainant did not prove that the cheque was issued in respect of an enforceable liability and the accused was acquitted. Under Section 139 of the Act, it is provided, It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. The effect of these presumptions is to place the evidential burden on the accused of proving that the cheque was not received by the complainant towards the discharge of any liability, because both Sections 138 and 139 require that the Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. As noted in State of Madras v. A. Vaidyanatha Iyer reported in AIR 1958 SC 61 it is obligatory on the Court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. Such a presumption is a presumption of law, as distinguished from a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability is assessed and quantified, if the cheque is filled up and presented to the bank, the person who had drawn the cheque cannot avoid the criminal liability arising out of Section 138 of the Negotiable Instruments Act. 10. Thus, none the contention raised by the accused can be accepted. The Court below erred in coming to the conclusion that the complainant has not proved that the cheque is supported by consideration. 11. Section 138 of the Act was enacted to punish unscrupulous drawers of cheques who, though purport to discharge their liability by issuing cheque, have no intentional of really to pay the amount, yet to fasten a criminal liability under the said provision, necessary ingredients of the section are to be satisfied. 12. On perusal of the provisions of Section 138 of the Act, it is manifest that to constitute an offence there under, the following ingredients are required to be filled: (i). A person must have drawn a cheque on an account maintained by him in a bank for payment of a certain amount of money to another person from out of that account. (ii). The cheque should have been issued for the discharge, in whole or in part, of any debt or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988) and came into force on 1.4.1989, was incorporated to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangements made by the drawer, with adequate safeguards to prevent harassment of honest drawers. 16. It is in the aforementioned backdrop, we must notice the provisions of Sections 138, 139 and 142 of the Act. In this case there was really a presumption available in favour of the complainant in terms of Sections 118 and 119 of the Negotiable Instruments Act and against the accused, and the accused, who had admitted the dealings between the two and even the signature in Exhibit 28 cheque, has not discharged his burden to rebut that presumption. The suggestions put to the complainant in cross-examination were denied specifically. It made obligatory for the accused to establish his version in defence by adducing reliable and acceptable evidence apart from his bare interested words which remained uncorroborated. Sopan and Rameshwar referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... containing stringent provisions and drastic powers with the police officer investigating such cases, the Apex Court observed thus: 41. Furthermore, we are dealing with a judgment of acquittal. The High Court, for good and sufficient reasons, had arrived at findings of fact both with regard to voluntariness of the purported confessions made by the respondents as also compliance of the mandatory statutory provisions vis-a-vis directions issued by the Central Government in making search, seizure as also taking of samples for the purpose of chemical examination been doubted, we do not see any reason why we should take a contrary view as it is well-known that the appellate court would not interfere with a judgment of acquittal only because another view is possible. On the other hand, if two views are possible, it is trite, the appellate court shall not interfere. See Animireddy Venkata Ramana and Ors. v. Public Prosecutor, High Court of Andhra Pradesh (2008) 5 SCC 368. In Bhagwan Singh v. State of M.P. reported in (2002) 4 SCC 85 it is observed thus: On the basis of the pronouncements of this Court, the settled position of law regarding the powers of the High Court in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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