9911796707
TMI Blog2020 (10) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... struments Act, 1881 (hereinafter referred to as, "NI Act"). 2. It is the case of the complainant that the accused issued a cheque dated 14.12.1999 for Rs. 75,000/- to the complainant for a legally enforceable debt. When the complainant presented the cheque for encashment, the same was returned with an endorsement "account closed" by a cheque returned memo dated 24.12.1999. On 05.01.2000, the complainant issued a legal notice to the accused through his advocate calling upon him to pay the cheque amount. The said notice sent by registered post was served on the accused. On 19.01.2000, the accused sent a reply raising false contentions. Hence, the complaint was lodged before the trial court. 3. Upon consideration of the complaint, the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amount was paid back, DW1 did not return the cheque to the accused and the present case was initiated in collusion between PW1 and DW1. When DW1 was examined, he stated that he had no acquaintance with PW1 and he did not receive any cheque from the accused at any point of time. DW1 further stated that he was one of the sureties to a loan transaction for the accused and cases had been pending against him and the accused in connection with the same. 6. In order to determine the question whether the offence punishable under Section 138 of the Act is made out against the accused, it is necessary to examine the penal provision of Section 138 of the Act and the presumptions to be raised as envisaged by the provisions of Sections 118 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecuted by the accused, the rules of presumptions under Sections 118 and 139 of the Act are very much available to the complainant and the burden shifts on the accused. However, this presumption is rebuttable. Under the circumstances, it is the duty of the accused before the court by adducing evidence to show that the cheque was not supported by consideration and that there was no debt or liability to be discharged as alleged. It is necessary on the part of the accused to set up a probable defence for getting the burden of proof shifted to the complainant. Once such rebuttable evidence is adduced and accepted by the court, the burden shifts back to the complainant. Having regard to the materials on record, this Court is of the view that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 and 40 of the above case are relevant in this context and the same is extracted below for convenience of reference:- "39. It is not the case of the respondent- accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows; i.The revision petitioner/accused is sentenced to pay a fine of Rs. 75,000/- (Rupees seventy five thousand only) and in default of payment of fine to undergo simple imprisonment for three months. ii. In view of the Covid-19 pandemic, the revision petitioner/accused is given six months time to deposit the amount before the trial court. Thus, the fine amount shall be deposited in the trial court within six months time from this date, failing which the accused shall undergo simple imprisonment for three months. iii. In case, the fine amount is deposited as ordered hereinabove, the same shall be released to the 1st respondent/complainant as compensation in accordance with law. The revision petition is allowed in part accordingly. X X X X Extracts X X X X X X X X Extracts X X X X
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