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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 ..... m. Existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the NI Act. In the case on hand, the 2nd accused has not gone into the witness box. Since issuance of Exs.P1 and P2-cheques by the accused is admitted and the complainant has proved his case by way of preponderance of evidence to show that Exs.P1 and P2-cheques returned with an endorsement funds insufficiency, it is to be held that the complainant has proved his case and that the trial Court went wrong in dismissing the complaint and acquitting the accused. The criminal appeal is allowed setting aside the acquittal recorded by the trial Court and finds the accused guilty of offence under Section 138 of the NI Act - appeal allowed. - Criminal Appeal No.971 of 2005 - - - Dated:- 29-10-2018 - Mr. Justice M.V. Muralidaran For the Appellant : Mr.Su.Srinivasan For the Respondent : Mrs.S.Sujatha (Legal Aid Counsel) JUDGMENT The unsuccessful complainant in case relating to offence punishable under Section 138 of the Negotiable Instruments Act (in short NI Act ) is the appellant herein. He filed C.C.No.609 of 2002 before the Judicial Magistrate No.II, Coimmbator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. Applying the above said provision, it will now be appropriate to advert to the factual matrix of the case. 6. The learned counsel for the appellant challenged the findings of the trial Court on the ground that the accused issued the two impugned cheques dated 28.3.2002 bearing Nos.1642561 and 1642562 for an amount of ₹ 25,000/- each in favour of the complainant and when the said cheques were presented for encashment, the same were returned with an endorsement that funds insufficient. Since the cheques were bounced for insufficient funds, the complainant caused a legal notice to the accused on 13.5.2002. Despite receipt of the notice, the accused have not paid the amount and having followed with the procedure, the complainant had filed the complaint. 7. Per contra, the learned counsel for the accused submitted that the trial Court after analysing the oral and documentary evidence rightly acquitted the accused and there is no need to interfere with the same. He would submit that after pointing out lot of suspicion, the trial Court arrived at such a finding and the said finding of the trial Court is based on evidence and prayed for dismissal of the appeal. 8. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had repaid a sum of ₹ 1,33,000/- to Rajagopal and Rajagopal had also executed receipt for the same. 12. When the accused pleaded that the impugned cheques have been wrongly used by the Rajagopal and filed a false case through the complainant, as stated supra, it is the duty of the accused to prove that the present case has been filed with false documents. Nothing has been produced to corroborate the version of the accused. No police complaint has been filed either by the husband of the 2nd respondent or the 2nd respondent in this regard. From the evidence on record, it is seen that only for the purpose of this case, the 2nd accused pleaded like. In fact, in his evidence as well as in the complaint, the complainant has categorically stated that on 30.1.2002, 2nd accused approached him and borrowed a sum of ₹ 50,000/- and when demanded, the 2nd accused issued Ex.P1 and P2-cheques dated 28.3.2002 for a sum of ₹ 25,000/- each for repayment of the said sum. 13. The complainant examined PW2-bank official, who categorically deposed that since there was insufficiency of funds, the impugned cheques were returned and the return memo and debit advise have been marked ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g presumptions shall be made: (a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; 138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unlessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said to have discharged the burden cast on him. Existence of legally recoverable debt or liability is a matter of presumption under Section 139 of the NI Act. In the case on hand, the 2nd accused has not gone into the witness box. 21. In a complaint filed under Section 138 of the NI Act, presumption is the accused has to pay the cheque amount to the complainant and to rebut the same the accused has to produce documents and evidence and make a clear picture that the claim of the complainant is not true. As stated supra, in the case on hand, the accused have failed to do so. On the other hand, the complainant has established his case by way of oral and documentary evidence. 22. Since issuance of Exs.P1 and P2-cheques by the accused is admitted and the complainant has proved his case by way of preponderance of evidence to show that Exs.P1 and P2-cheques returned with an endorsement funds insufficiency, it is to be held that the complainant has proved his case and that the trial Court went wrong in dismissing the complaint and acquitting the accused. 23. In the result, the criminal appeal is allowed setting aside the acquittal recorded by the trial Court and finds the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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