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TMI Blog2020 (3) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... m him due to personal relation, therefore, it is not a case under Money Lenders Act, 1934. Again, the amount in question is not within purview of the Income Tax Act, 1961. Any infringement of provision of Income Tax Act, 1961 is matter between revenue and assessee, but same is not relevant because it is proved that money was borrowed by the respondent. Corroborative piece of evidence is not a rule of law, but it is a rule of prudence and presumption under Section 139 of the Act, 1881 is rule of law and presumption has to be drawn by the court as per Section 139 of the Act, 1881. When presumption is not rebutted, charge under Section 138 of the Act, 1881 is established. On an overall assessment, it can be said that the finding of the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o acquittal. 3. Learned counsel for the appellant submits as under: i) From the evidence of complainant Alok Kumar (PW/1), and Gayatri (PW/2), it is established that respondent borrowed a sum of ₹ 25,000/- from the appellant/complainant and for discharge of liability respondent issued a cheque in favour of appellant amounting to ₹ 25,000/- which was placed before the Bank and same was dishonoured due to insufficient fund. ii) The trial court decided the issue as per provisions of Money Lenders Act, 1934 and Income Tax Act, 1961, but the issue ought to have been decided under the provisions of Negotiable Instruments Act, 1881. Iii) The trial court has not evaluated the evidence in its true perspective, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 139 of the Negotiable Instruments Act,1881, 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. Section 118 of the Act, 1881 reads as under: 118 Presumptions as to negotiable instruments. -Until the contrary is proved, the following 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, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; (b) as to date -that every negotiable instrument be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 138 of the Act, 1881 is established. 10. On an overall assessment, it can be said that the finding of the trial Court is against weight of the evidence and same is not legal because it is contrary to the provisions of the Act, 1881. In view of the evidence of both sides, argument advanced on behalf of the respondent is not acceptable and the act of the respondent falls within mischief of Section 138 of the Act, 1881. 11. Accordingly, the instant appeal is allowed. Acquittal of the respondent set aside. Respondent is convicted under Section 138 of the Negotiable Instruments Act, 1881. The date of issuance of cheque is 7-8-2011. Appellant is entitled to interest @ 6% per annum on the amount advanced by him. Accordingly, the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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