9911796707
TMI Blog2018 (8) TMI 707X X X X Extracts X X X X X X X X Extracts X X X X ..... he said cheque was deposited, it was dishonoured. Therefore, the appellant was constrained to issue notice to the respondent for making good the payment for the value of the said cheque, but the respondent failed to respond to the said notice. Consequently, the appellant filed complaint before the trial Court against the respondent for an offence punishable under Section 138 of the said Act. 3. In order to support its case, the appellant placed on record bills dated 05.09.2011, 14.09.2011 and 09.05.2011 (Exhs. 19, 20 and 21) pertaining to items purchased by the respondent. The amounts stated in the said bills came to a total of Rs. 49,444/-, which was the amount for which the cheque dated 16.01.2013 (Exh.22) had been issued by the respondent. The appellant also placed on record copy of the notice issued to the respondent and the cheque in question. Apart from this, a legally authorised person representing the appellant entered into the witness box and deposed in support of the complaint. 4. The respondent, neither sent any reply to the notice sent by the appellant nor did he file any submissions or reply in response to the complaint filed by the appellant before the trial Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was probable. It was submitted that the law did not require the respondent to produce direct evidence or even to enter the witness box to prove his defence in order to rebut the presumption under the provisions of the said Act. It was submitted that when the appellant itself had come with a case that the consideration for which the cheque was issued pertained to sale of cosmetic items, bills showing electric items sold to the respondent negated the case of the appellant. It was submitted that the presumption stood rebutted in the present case and the appellant had failed to prove its case before the Court. It was submitted that when the view taken by the trial Court was a possible view, no interference in appeal was warranted. 8. The learned counsel for both the parties relied on number of judgments pertaining to the effect of presumption under Sections 118 and 139 of the aforesaid Act and the manner in which such a presumption could be rebutted. 9. A perusal of Sections 118 and 139 of the aforesaid Act shows that when signature on a cheque is not disputed, it is to be presumed that the same was issued for consideration and for discharge of legal debt or liability. The presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to be discharged by him. However, the court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , stood rebutted and that the appellant had failed to prove its case beyond reasonable doubt. 12. A perusal of the complaint filed by the appellant and the evidence of the witness who appeared in support of the complaint shows that there were regular transactions between the appellant and the respondent. It was stated in the complaint that the appellant was a super stockist of pharmaceutical and cosmetic items and that the respondent used to purchase items from it. It has come in the evidence of the witness that there was endorsement on the bills in question at Exhs. 19, 20 and 21 indicating that the said items were indeed delivered to the respondent and further that they were delivered by hand. The aforesaid material on record read with the cheque in question Exh.22 demonstrates that the amounts mentioned in the bills at Exhs. 19, 20 and 21 came to a total of Rs. 49,444/-, which was the exact amount for which the cheque in question was issued. 13. In this situation, the appellant was clearly able to establish existence of transactions between it and the respondent and further that the cheque in question was indeed issued in respect of purchase of items reflected in the bills at ..... X X X X Extracts X X X X X X X X Extracts X X X X
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