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TMI Blog2020 (10) TMI 905X X X X Extracts X X X X X X X X Extracts X X X X ..... galur. These records show that accused was involved in the similar case on the allegation of borrowing loan from one Annapoorna issuing cheque and the cheque was dishonoured. Ex.P9 the joint memo shows that the accused settled the said matter for ₹ 1,00,000/- ultimately. Ex.P10 was the certified copy of the application filed by Annapoorna in Crl.Misc.No.93/2013 for recovery of compensation of ₹ 1,50,000/- in pursuance of the order passed in C.C.No.1630/2007 convicting the accused for the offence punishable under Section 138 of NI Act. The trial Court has rightly convicted and sentenced the accused and that was confirmed by the First Appellate Court. This Court finds no ground to admit the petition - Petition dismissed. - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.08.2006 with the endorsement funds insufficient . 5. The complainant got issued notice - Ex.P7 dated 19.08.2006 to the accused alleging that she has borrowed ₹ 2,25,000/- in December 2005 for her personal use agreeing to repay the same with interest at the rate of 2% per month and failed to repay the same. In the notice, the complainant further alleged that towards discharge of the said loan, accused issued the cheque - Ex.P1 without arranging the funds for honouring the said cheque, therefore, that was dishonoured. Therefore, he called upon the accused to pay the cheque amount. 6. According to the complainant, the notice was served on the accused under acknowledgment - Ex.P6 and she failed to pay the cheque amount. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne Shamala Godi, the sister-in-law of the complainant towards chit fund subscription transaction and that was misused by the complainant to file the case. iii). The notice - Ex.P7 was not served on the ] accused. iv). The cheque was issued not for discharging any liability payable to the complainant. 11. Both the trial Court and the First Appellate Court held that since the accused admitted her signature on the cheque and that the cheque pertain to her account, the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued towards discharge of liability arises and the accused has failed to rebut the said presumption. 12. The trial Court and the First Appellate Court further held that the notice - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the accused admitted that Ex.P1 - cheque belongs to her account and the signature on the same. But her only defence was that she had issued the said cheque about eight years back to one Shamala Godi the sister-in-law of the complainant towards some chit fund subscription and the complainant has misused the same to file the complaint. Under such circumstances, as rightly held by both the Courts, the presumption under Section 139 of the Negotiable Instruments Act that the cheque was issued towards discharge of liability of the accused arises. Then the burden shifts to the accused to rebut the said presumption. 16. To rebut such presumption, except for the self serving testimony of the accused that the cheque was not issued in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ex.P10 was the certified copy of the application filed by Annapoorna in Crl.Misc.No.93/2013 for recovery of compensation of ₹ 1,50,000/- in pursuance of the order passed in C.C.No.1630/2007 convicting the accused for the offence punishable under Section 138 of NI Act. 22. The Hon'ble Supreme Court in APS Forex Services Pvt. Ltd. vs. Shakti International Fashion Linkers and Others AIR 2020 SC 945 has held that the moment the accused admits the cheque and his signature on the cheque, the presumption arises that the cheque in question was issued towards discharge of legally enforceable debt or liability and it was for the accused to rebut such presumption. In this case also the presumption under Section 139 of the Negotiable Inst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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