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TMI Blog2020 (3) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... e remains liable and he may adduce any evidence to rebut presumption. Presumption will live, exist and survive and shall end only when contrary is proved by the accused/respondent. The trial Court recorded finding that there is no specific evidence that on which date loan was advanced, therefore, advancement of loan is not established. In view of this Court, finding arrived at by the trial Court is against the legal aspects of the matter. When the respondent himself has not deposed before the trial Court that he has not borrowed money from the appellant, presumption under Section 139 of the Act, 1881 will survive and remain exist and corroboration to the statement of the appellant is not required. On an overall assessment, it can be s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iency of fund in the account of the respondent. Thereafter legal notice was sent and even after receiving the notice the payment is not made, hence, complaint under Section 138 of the Act 1881 was filed before the said Court which resulted into acquittal. 3. Learned counsel for the appellant submits as under: (i) Cheque were issued on account of debt and after dishounour or the cheque, notice was issued to the respondent but no reply was given to said notice which shows that the respondent is accepting his liability. (ii) The respondent is saying that cheque were issued for surety purpose but this fact was not replied in the notice issued to him, therefore, this version of the respondent is after thought and the same is not liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (PW-3) and exhibited documents P/1 to P/15. In rebuttal the respondent side submitted documents Ex-D/1 to D/11. From the statement of Prashant Parakh (PW-1), it is established that the loan was advanced to the respondent for a sum of ₹ 80,000/- between 02.8.2007 to 05.8.2007 due to necessity of construction work. As per the version of this witness, two cheque were issued in his favour amounting to ₹ 60,000/- ₹ 20,000/- which were deposited in the State Bank Of India Balod Branch and the same were dishonoured on 13.3.2008 for insufficiency of fund. Thereafter, he issued notice to the respondent on 02.4.2008 but no payment was made even after receiving the notice on 15.4.2008 and thereafter complaint was filed. This v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or drawn on such date; 9. It is not a case of the respondent that he has not signed the cheque. A meaningful reading of the provisions of the Act, 1881 makes it ample clear that the person signed the cheque over to a payee remains liable and he may adduce any evidence to rebut presumption. Presumption will live, exist and survive and shall end only when contrary is proved by the accused/respondent. 10. The trial Court recorded finding that there is no specific evidence that on which date loan was advanced, therefore, advancement of loan is not established. In view of this Court, finding arrived at by the trial Court is against the legal aspects of the matter. When the respondent himself has not deposed before the trial Court that he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent is sentenced to pay fine of ₹ 1,60,000/- (Rupees One lakh sixty thousand only) for offence under Section 138 of the Act, 1881. The trial court shall make effort to liquidate the amount as per provisions of CrPC. It is made clear that if the respondent is sent to jail for non-recovery of amount, the payment of amount shall not be discharged because his detention in jail is a mode of recovery and same is not satisfaction of liability, therefore, his liability shall be discharged only when he pays the amount of ₹ 1,60,000/-, It is directed that if the amount is not deposited within fifteen days the amount shall further carry interest @ 8% per annum in principle amount of ₹ 80,000/- till the realization of the entire amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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