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TMI Blog2019 (8) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... e and in the context of the unreasonable and improbable plea raised by the accused, it can very well be found that his evidence is sufficient to prove that Ext.P1 cheque was drawn and delivered to him by the accused - Once execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the court to raise the presumption under Section 139 of the Act in every case where the factual basis for raising the presumption had been established. It is a presumption of law as distinguished from a presumption of fact. When the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the present case, no attempt whatsoever was made by the accused to rebut the presumption under Section 139 of the Act. It is not essential that the accused should adduce evidence of his own to rebut the presumption. It is enough if he succeeds in discharging the burden to rebut the presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused not guilty of the offence punishable under Section 138 of the Act and acquitted him. 4. Heard learned counsel for the appellant and also the first respondent/accused and perused the records. 5. Ext.P1 is the cheque dated 28.09.2007 for ₹ 35,000/- alleged to have been executed by the accused and delivered by him to the complainant. Ext.P2 memorandum dated 01.10.2007 issued from the bank shows that the cheque was returned unpaid for the reason that there was no sufficient amount in the account of the accused. Ext.P3 memorandum shows that it was on 11.10.2007 that intimation regarding the dishonour of the cheque was given to the complainant from his bank. Ext.P4 is the copy of the lawyer notice sent by the complainant to the accused demanding payment of the amount of the cheque. It is dated 16.10.2007. Ext.P6 is the cover containing the lawyer notice which was returned to the complainant. It bears the endorsement made by the postal authority that Unclaimed. Returned to sender . The complaint was filed on 24.11.2007. 6. The complainant was examined as PW1. In examinationin- chief (proof affidavit) he has given evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in words are written in a different handwriting. 13. Absence of averment in the complaint with regard to the date of borrowing the amount is not necessarily fatal in all cases. It would depend upon the facts and circumstances of each case. In the instant case, absence of averment in the complaint as to the date of the transaction does not assume any significance. Regarding the date of issuing the cheque, it is to be noted that there is a presumption under Section 118(b) of the Act that every negotiable instrument bearing a date was made or drawn on such date. 14. PW1 has stated on cross examination that it was on 28.08.2007 that the accused borrowed the money from him. But, he has stated that the accused gave him the cheque on 26.08.2007. The trial court has found that it was not probable that the cheque was issued on a date prior to the date of the original transaction. Learned counsel for the appellant has contended that it was only an inadvertent mistake committed by PW1 in stating the date of issuing the cheque. There is force in this contention. The statement made by PW1 that the accused gave him the cheque on 26.08.2007 cannot be read in i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case, there is no sufficient reason to disbelieve the evidence of PW1 that the accused made the entries in the cheque and signed it and gave it to him. When the evidence of PW1 is appreciated in the totality of the facts and circumstances presented in the case and in the context of the unreasonable and improbable plea raised by the accused, it can very well be found that his evidence is sufficient to prove that Ext.P1 cheque was drawn and delivered to him by the accused. 20. Once execution of the cheque by the accused is proved, the presumption under Section 139 of the Act comes into play. The burden is upon the accused to rebut the presumption. It is obligatory on the court to raise the presumption under Section 139 of the Act in every case where the factual basis for raising the presumption had been established. It is a presumption of law as distinguished from a presumption of fact. When the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion. But this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. In the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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