9911796707
TMI Blog2020 (12) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that the both the trial court and appellate court concurrently construed the presumptions under Section 139 of the Act in accordance with law. Unless the contrary is proved, it is presumed that the holder of a cheque received the cheque of the nature referred to in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. In the case at hand, the accused has no case that he has not signed the cheque or parted with under any threat or coercion. That apart, the accused has no case that unfilled cheque had been lost irrecoverably or stolen. Although DW1 was examined before the trial court, he had no direct knowledge regarding the transaction between the parties. The accused failed to prove in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e months and also to pay a compensation of ₹ 2,00,000/-, in default of payment of compensation to undergo further imprisonment for a period of two months more for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ('the Act' for short). 2. It is the case of the 1st respondent/complainant (hereinafter referred to as 'complainant') that the revision petitioner/accused (hereinafter referred to as the 'accused') borrowed a sum of ₹ 2,00,000/- on 15.08.2000 and issued Ext.P1 cheque for a legally enforceable debt. The complainant presented the said cheque for encashment, but the same was returned unpaid with the endorsement 'funds insufficient'. The complainant issued a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent places for which four blank cheques were issued. He maintained that he had repaid an amount of ₹ 1,00,000/- to PW1 and received back two of the cheques in the presence of two Sub Inspectors of Police, Kundara, who had intervened in the dispute between the parties. He would further say that there was failure to settle the interest portion of the liability pursuant to a compromise arrived at between the parties, the complainant misutilized Ext.P1 cheque and filed the present complaint. In support of his contention, the Sub Inspector of Police, Kundara was examined as DW1. 5. On appreciation of the evidence, the learned Magistrate held that execution of Ext.P1 cheque was admitted by the accused and that it was proved that the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Section 138 of the Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the Act, it becomes evident that in a trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that, as and when the complainant discharges the burden to prove that the cheque was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act are very much avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques were issued. He would say that when dispute arose between the parties, he filed a complaint before the Sub Inspector of Police, Kundara, who intervened the matter and settled the dispute for an amount of ₹ 1,00,000/- According to him, the said amount was paid by him on two occasions. He would maintain that there was only balance amount of ₹ 30,000/- as interest. He would maintain that claiming the interest, complainant filed a complaint under Section 138 of the N.I. Act utilising one of the blank cheques entrusted to the complainant. 8. It is well settled law that a revision against concurrent findings of conviction and sentence, the High Court does not, in the absence of perversity upset factual findings arrived at b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused 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 the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
