9911796707
TMI Blog2018 (11) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... laint. 3. It is the case of the complainant that the accused borrowed a sum of Rs. 25,000/- from him and in discharge of the said loan, the accused issued the cheque in favour of the complainant. When the complainant presented the said cheque for encashment through his banker, the same has been returned as funds insufficient. Hence, the complainant had issued a legal notice to the accused to pay the cheque amount, but the respondent refused to pay the same. Thereafter, the complainant has filed the complaint under Section 138 of Negotiable Instruments Act (hereinafter referred to as "the NI Act") before the learned Judicial Magistrate No.II, Salem in C.C.No.715 of 2005. On receipt of summons, the accused appeared and when he was questioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 25,000/-. He further stated that when the cheque was presented for encashment, the same was returned as funds insufficient through Ex.P2. Thereafter, the complainant issued Ex.P3 legal notice to the accused to his two addresses demanding money and the acknowledgment cards were marked as Exs.P4 and P5. 9. Admittedly, in the case on hand, the accused has not examined as witness. However, in his evidence D.W.1-Raja has stated that he was running Gas Agency and was doing cement sales business and at the relevant point of time the accused was working in his shop. Since the accused sold different brand, he was removed. In his evidence, D.W.1 stated that in the business transaction between the complainant and the accused, there was a balance t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il in nature, he advised the complainant to file a civil suit or settle through panchayat. But on the same day evening, the complainant came to the police station and informed him that as per the settlement in the panchayat, the accused paid Rs. 15,000/- cash and issued cheque for Rs. 25,000/-. The complainant had also shown the letter executed by him and on seeing the same, he advised to take photocopy and keep them each one. 12. On a perusal of the evidence of D.W.1 and Ex.D1, it is clear that the accused had issued the cheque in question in favour of the complainant for amount due to the complainant. However, the lower appellate Court erred in accepting the evidence of D.W.1 through which it does not express about the disputed cheque. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 unless i. the cheque has been presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal 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 that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 17. It is also settled that the accused had to prove in the trial by leading cogent e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has failed to do so. 21. Since issuance of Ex.P1-cheque by the accused and his signature therein are admitted by the accused and the complainant has proved his case by way of preponderance of evidence to show that Ex.P1-cheque returned with an endorsement funds insufficient, it is to be held that the complainant has proved his case and that the lower appellate Court went wrong in setting aside the judgment of the trial Court, which is a well founded. 22. Thus, on reading and evaluation of entire evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
