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TMI Blog2017 (9) TMI 1564X X X X Extracts X X X X X X X X Extracts X X X X ..... r the amount of ₹ 2,00,000/- bearing no.965528 dated 27.12.11 drawn on SBI, Rail Bhawan was handed over to the appellant at the time of execution of the loan agreement but in his complaint as well as in his evidence, the appellant had stated that the said cheque was handed over to him after he raised a demand for repayment of the loan amount to the respondent in December of 2011. The controversy whether a cheque given as security can be brought within the purview of Section 138 of the NI Act does not arise here as a cheque has to be issued for the amount which is due to the holder of the cheque. The various contradictions in the appellant’s version has put a serious doubt as to whether there exists a legally subsisting liability of ₹ 2 lacs in favour of the appellant. The various inconsistencies in the stand taken by the appellant leads the Court to believe that the existence of the liability to be highly improbable. Since the appellant was not able to prove the amount of ₹ 24,000/- allegedly paid by cash to the respondent as loan along with a cheque of ₹ 1,76,000/-, the cheque in question which was for the amount of ₹ 2,00,000/- can in no way be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case basis as to whether, on the date of presentation of the dishonoured cheque the ascertained and crystallised debt or other liability did not exist. The onus to raise a probable defence would lie on the accused, as the law raises a presumption in favour of the holder of the cheque that the dishonoured cheque was issued in respect of a debt or other liability. As settled by the Supreme Court, the said onus obliges the accused to raise a defence - either by picking holes in the case of the complainant and/or by positively leading defence evidence which leads the Court to believe that there is a probable defence raised by the accused to the claim of the complainant with regard to the existence of the debt or other liability. The said onus does not cast as stringent an obligation on the accused, as it casts on the complainant, who has to prove beyond reasonable doubt the guilt of the accused. 6. Learned counsel further contended that the loan agreement dated 01.04.2011 between the appellant and the respondent clearly establishes the liability of ₹ 2,00,000/- which the respondent had to discharge in favour of the appellant. He urged that the agreement was signed by both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of holder. 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, or any debt or other liability. 14. The Hon ble Supreme Court in Bharat Barrel Drum Mfg. Co. v. Amin Chand Payrelal, (1999) 3 SCC 35 while dealing with the nature of presumption under Section 118 of the NI Act held as under: 12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons thereof which read as under: LOAN AGREEMENT This Loan Agreement is made and executed at Delhi on this 1st April 11 Between:- Sh. Gurdip Singh Anand hereinafter called as Lender/First PartAnd Mr. Joseph Daniel son of late Shri L. Joseph R/o Flat No.1022, R.K. Puram, Sector-7, New Delhi-110022 (hereinafter called the Borrower/Second Party) .......................................... WHEREAS the lender has agreed to give the loan of ₹ 2,00,000/-/- to borrower on flat interest rate of 2% per month. .......................................... 1. That the borrower hereby acknowledges that he has received the loan of ₹ 2,00,000/- from the LENDER. A separate receipt of said loan amount of ₹ 2,00,000/- is executed by the borrower. 2. That the borrower hereby assures the lender that he will pay back the loan amount of ₹ 2,00,000/along with interest @ __ per month as per the Schedule to Loan Agreement. 3. That in support of the present Loan Agreement, the borrower has also executed a promissory note, an undertaking/affidavit in favout of the lender, further the borrower has also handed over the post-dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase (supra), the respondent can rebut the presumption under Sections 139 and 118 of the NI Act by raising a probable defence. The respondent in doing so can either bring in his own evidence or rely upon the evidence submitted by the appellant. In the present case the respondent deposed that he had only received by way of loan from the appellant an amount of ₹ 1,76,000/-. This assertion without any proof is not likely to go very far in raising a probable defence, but the appellant himself admitted that a cheque for the sum of ₹ 1,76,000 and cash ₹ 24,000/- was paid to the respondent, strengthens the defence of the respondent. Even this stand in cross-examination by the appellant is contradictory to the agreement which mentions that loan amount of ₹ 2 lacs includes interest. 20. The fallacy in the appellant s case is also brought from the fact that the loan agreement mentions that a post-dated cheque for the amount of ₹ 2,00,000/- bearing no.965528 dated 27.12.11 drawn on SBI, Rail Bhawan was handed over to the appellant at the time of execution of the loan agreement but in his complaint as well as in his evidence, the appellant had stated that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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