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TMI Blog2018 (10) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... t has proved, the execution of cheque and drew the legal presumption. Whereas, the accused has stated that the complainant has not proved, the loan transaction between both the parties and he has attempted to prove that he has not borrowed money and also the cheque has not been issued for the legally enforceable debt - It is well settled law that once the execution of the cheque is admitted and the signature is not disputed and it is the legal presumption that the cheque is issued for the legally enforceable debt. No doubt, the presumption is rebuttable presumption. Therefore, it is for the accused to rebut the presumption. If not through direct evidence but by way of probable defence - the Courts below found that the said legal presumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es were examined and 6 documents were marked. 3.The learned Magistrate after completion of the trial, heard the case on either side and discussed elaborately and found the accused guilty for the offence punishable under Section 138 of Negotiable Instruments Act and sentenced to undergo three months simple imprisonment and directed to pay a sum of ₹ 3,000/- as fine. 4.As against the said order dated 27.11.2012 made in STC No.18/2012, the complainant preferred Crl.R.C.No.32/2013 for enhancement of sentence. 5.On the other hand, feeling aggrieved against the judgment passed by the learned Magistrate, the petitioner/accused has preferred an appeal before the learned District and Sessions Judge, Coimbatore in Crl.A.No.347/2012 in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. In the absence of any such documentary proof, showing loan transaction between the complainant and respondent, the judgment of the Courts below are perverse and both the Courts below failed to note that the accused has rebutted the presumption under Section 139 of Negotiable Instruments Act. 8.Under these circumstances, the judgment of the Courts below are liable to be set aside and the learned counsel for the petitioner/accused has placed reliance on the judgments rendered by this Court reported in i)(2011) 2 MLJ (Crl) 590 (P.Gnanambigai Vs. S.Krishnasamy and Another), ii)2006 (5) CTC 296 ( P.Eswaran Vs. J.A.Abdul Hameed) and iii)(2007) 2 MLJ (Crl) 1684 (M.A.Nachimuthu Vs. N.Ravichandran). 9.The learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Heard the rival submissions made on either side and perused the records. 12.It is the case of the complainant that the petitioner borrowed a sum of ₹ 1 lakh from the complainant on 01.02.2008 and issued a cheque bearing No.716364, the complainant presented the cheque in his bank that the said cheque was returned and after receipt of the return memo, the complainant issued a statutory notice through his counsel dated 24.09.2008, the said notice was received by the accused on 06.10.2008. After receiving notice, the accused either repaid the amount demanded or he sent any reply to the statutory notice. Therefore, the complainant filed a complaint before the Magistrate under Section 138 of Negotiable Instruments Act. After completing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant has proved, the execution of cheque and drew the legal presumption. 15.Whereas, the accused has stated that the complainant has not proved, the loan transaction between both the parties and he has attempted to prove that he has not borrowed money and also the cheque has not been issued for the legally enforceable debt. It is well settled law that once the execution of the cheque is admitted and the signature is not disputed and it is the legal presumption that the cheque is issued for the legally enforceable debt. No doubt, the presumption is rebuttable presumption. Therefore, it is for the accused to rebut the presumption. If not through direct evidence but by way of probable defence. 16.So in this case, both the Courts below ..... X X X X Extracts X X X X X X X X Extracts X X X X
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