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TMI Blog2018 (11) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... through his counsel. Though the accused received the notice served on certificate of posting and after knowing the contents therein, refused to receive the registered post and the same was returned as not claimed. Since the accused failed to repay the amount nor issued reply within the stipulated time, the complainant had filed the complaint under Section 138 of the NI Act. 2. During trial in the trial Court, the complainant examined himself as P.W.1 and one Duraisamy was examined as P.W.2. On the side of the complainant, 11 documents were marked. On the side of the accused, 3 witnesses were examined and 2 documents were marked. 3. The trial Court, after considering the contention of both the parties, found the accused not guilty of the offence under Section 138 of the NI Act and acquitted the accused by stating that the complainant has failed to prove that the 2nd accused received a sum of Rs. 50,000/- from the complainant as loan and in order to discharge the said loan, she had given the impugned two cheques and also the role played by the 2nd accused in Srivalsa Agency. 4. Aggrieved by the judgment of the trial Court, the present appeal has been preferred by the complainant/a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... round of variation of signature, but on the ground of insufficiency of funds. This Court finds some force in the submissions of the learned counsel for the complainant. 10. The case of the accused is that there was no transaction between the complainant and the accused and accused never borrowed any amount from the complainant and to discharge the said loan, the accused have not issued cheques in favour of the complainant. According to the accused, in the year 1995, the husband of the 2nd accused borrowed a sum of Rs. 50,000/- from D.W.1-Rajagopal and for security, he had given the impugned cheques without signature. Further, the amount due to Rajagopal was discharged by the 2nd accused on 16.1.2002 and when the 2nd accused demanded Rajagopal for return of the impugned cheques, he replied that the same had been misplaced and he would search and give it later. According to the accused, subsequently, the impugned cheques have been wrongly used and filed the complaint. When the 2nd accused pleaded that the impugned cheques have been wrongly used by the said Rajagopal and filed a false case through the complainant, it is the bounden duty of the accused to prove the same. Admittedly, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant. When the complainant presented the said cheques for encashment, the same were returned as funds insufficient. 14. The trial Court, in its judgment held that if really the accused had borrowed Rs. 50,000/- from the complainant, for the purpose of repayment, the accused would have issued only one cheque. But in the case on hand, the complainant pleaded that for discharging the said loan, the accused had given two cheques and there was no necessity to issue two cheques. The aforesaid finding of the trial Court is unacceptable for the reason that nothing prevented the accused in giving two cheques for discharge of a single loan. 15. On overall analysis of the evidence on record, it is seen that the trial Court erred in holding that DW1 had set up the complainant to initiate the proceeding against the accused by giving the impugned cheques given to him as security by the accused. The story of setting up pleaded by the accused has not been proved by way of documentary proof. In the absence of any proof, it cannot be contended that DW1 had set up the complainant to initiate the present proceedings. 16. On a perusal of the judgment of the trial Court, it is seen that it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een days of the receipt of the said notice. Explanation. - For the purposes of this section, `debt or other liability' means a legally enforceable debt or other liability. 139. Presumption in favour 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, of any debt, or other liability." 18. Ordinarily in cheque bouncing cases, what the Courts have to consider is whether the ingredients of the offence enumerated in Section 138 of the NI Act have been met and if so, whether the accused was able to rebut the statutory presumption contemplated by Section 139 of the NI Act. 19. It is settled that Sections 138 and 139 of the NI Act introduced exceptions to the general rule as to the burden of proof in criminal cases and shifted the onus on the accused. Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the Court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter all t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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