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TMI Blog2019 (8) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... o adduce evidence of such facts and circumstances to rebut the presumption that such debt does not exist or that the cheques are not supported by consideration. In the present case, by examining himself as PW-1, the complainant has discharged the initial burden cast upon him that the cheques were issued for the rice bags purchased on credit. With the examination of PW-1, the statutory presumption under Section 139 of the Act arises that the cheques were issued by the respondent-accused for the discharge of any debt or other liability in whole or in part. The courts below disbelieved the evidence of the complainant on the ground that there are no averments in the complaint that the commodities were sold for cash and that the rice bags were sold on credit and the cheques were issued for the goods sold on credit. Though the complaint contains no specific averments that the cheques were issued for the purchase made on credit, in his evidence, PW-1 clearly stated that the cheques were issued for the commodities purchased on credit. With the evidence adduced by the complainant, the courts below ought to have raised the presumption under Section 139 of the Act. The evidence adduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-accused issued nine cheques, details of which are as under:- Date Number Amount 1. 01.09.2003 002481 ₹ 18,000.00 2. 15.09.2003 633427 ₹ 20,000.00 3. 22.09.2003 633428 ₹ 20,000.00 4. 29.09.2003 633429 ₹ 20,000.00 5. 03.10.2003 531977 ₹ 25,000.00 6. 06.10.2003 633430 ₹ 20,979.00 7. 13.10.2003 531975 ₹ 20,000.00 8. 27.10.2003 531976 ₹ 25,000.00 9. 10.11.2003 531978 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to other commodities and the cheques were made for payment of rice bags. Holding that the case of the appellant was not consistent, the High Court affirmed the order of acquittal and dismissed the appeals filed by the complainant-appellant. 8. The learned counsel for the appellant submitted that the transaction between the parties was a mercantile transaction and during the course of the business, running accounts were maintained when purchases were made at different times and payments were made by both modes i.e. cash and cheques. It was submitted that both the courts below overlooked the fact that the transactions were mercantile transactions mixed up with cash payments and also payments made by cheques. It was submitted that the courts below erred in not keeping in view the statutory presumption available under Section 139 of the Negotiable Instruments Act to the appellant and that the respondent-accused failed to rebut the presumption by leading cogent and consistent evidence. The learned counsel urged that the impugned judgment is contrary to the object of Section 138 and Section 139 of the Negotiable Instruments Act and is liable to be set aside. 9. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Date Amount 1. 1276 02.09.2003 ₹ 16,000/- 2. 1291 04.09.2003 ₹ 2,000/- 3. 1340 08.09.2003 ₹ 16,000/- 4. 1489 27.09.2003 ₹ 20,000/- 5. 1556 03.10.2003 ₹ 20,000/- 6. 1615 06.10.2003 ₹ 14,500/- 7. 1621 08.10.2003 ₹ 5,000/- 8. 1682 13.10.2003 ₹ 15,500/- 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipts to the respondent; however, the appellant did not return the blank cheques left by the respondent with the appellant though the respondent made the payments and those cheques were misused by the appellant-complainant. 13. As seen from the receipts-Ex.-16/C (colly) and Ex.-22/C (colly), though the amount said to have been credited to the account of the respondent, the receipts contain the expression cheques are subject to realisation . The format of the receipt- Ex.-16 (colly) is as under:- M (CST) 4265 dt 4.9.91 M (ST) 6104 dt 4.9.91 Tel: Res: .. M/s SHREE DANESHWARI TRADERS General Merchant Commission Agent Shop No.8, Masjid Building Malbhar, MARGAO-GOA No.1145 Date: 18.8.03 RECEIPT Credited to the account of M/s Shantadurga Stores, Margao, the amount of Rs. Fifteen Thousand only, by Cash/Cheque/Draft ₹ 15,000/-. For M/s. Shree Daneshwari Traders L/F ____________________________ Cheques are subject to realisation. Case of the appellant is that the receipts-Ex.-22/C (colly) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant which was affirmed by the High Court. It was further held that the blank cheques left by the accused were with the complainant and they have been used to file the complaint. The courts below did not keep in view that the appellant has no control over the manner of issuance of cheques by the respondent and how it was issued. Merely because, later cheque No.2497 was said to have been issued by the respondent at an earlier date i.e. 08.08.2003, it cannot be held that the complainant had used the blank cheques issued by the respondent. 16. Under Section 138 of the Negotiable Instruments Act, once the cheque is issued by the drawer, a presumption under Section 139 of the Negotiable Instruments Act in favour of the holder would be attracted. Section 139 creates a statutory presumption that a cheque received in the nature referred to under Section 138 of the Negotiable Instruments Act is for the discharge in whole or in part of any debt or other liability. The initial burden lies upon the complainant to prove the circumstances under which the cheque was issued in his favour and that the same was issued in discharge of a legally enforceable debt. 17. It is for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque was not issued for consideration and in discharge of any debt or liability. A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists. 19. The use of the phrase until the contrary is proved in Section 118 of the Act and use of the words unless the contrary is proved in Section 139 of the Act read with definitions of may presume and shall presume as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable. When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over. 20. The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the goods sold on credit. Though the complaint contains no specific averments that the cheques were issued for the purchase made on credit, in his evidence, PW-1 clearly stated that the cheques were issued for the commodities purchased on credit. The courts below erred in brushing aside the evidence of PW-1 on the ground that there were no averments in the complaint as to the purchases made by cash and purchase. The courts below also erred in not raising the statutory presumption under Section 139 of the Act that the complainant received the cheques to discharge the debt or other liability in whole or in part. 19. It is for the respondent-accused to adduce evidence to prove that the cheques were not supported by consideration and that there was no debt or liability to be discharged by him. The receipts-Ex.-22/C (colly) relied upon by the respondentaccused do not create doubt about the purchases made on credit and the existence of a legally enforceable debt for which the cheques were issued. The courts below erred in saying that by the receipts-Ex.22/C (colly), the respondent-accused has rebutted the statutory presumption raised under Section 139 of the Negotiable Instrum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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