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TMI Blog2010 (2) TMI 1287X X X X Extracts X X X X X X X X Extracts X X X X ..... by demand notice in writing dated 10.6.2002 (exhibit 55). Although the notice was sent by registered post with A/d and served upon the accused, accused failed to comply and according to complainant, gave false reply to avoid repayment due on the cheque in question (exhibit 58). As such, complaint came to be filed on 4.7.2002. 2. The evidence was led in support of the complaint by affidavit of the Kamalkishor Bhattad who was also cross-examined with reference to the contentions in the evidence on affidavit and documents on record. It appears that in the course of cross-examination, the deponent on behalf of the complainant was questioned about one case filed against Nandkishor Harsh. It is also questioned as to whether amount paid to the accused was shown in the income-tax return. The witness on behalf of the complainant admitted that no receipt was obtained from the accused in token of receiving sum of ₹ 50,000/- as also the fact that no income-tax returns were filed. The witness on behalf of complainant also denied suggestion that disputed cheque was given to Nandkishor Harsh to arrange finance. 3 . Under these circumstances, it is contended that when it was specific d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the above submission. As against this contention, learned Advocate for the complainant has pressed into service judgment of this Court in Devidas v. Harishchandra, reported in 2009 (3) Bom C.R.(Cri) 458. In the said case, learned Magistrate concluded that it could not be accepted that such huge amount of ₹ 1,80,000/- was advanced by complainant. It has been held by this Court in the said case that this amounts to reading in law a provision which does not exist and also overlooks presumption of liability in Section 139 of the Act. It is further held that such an approach amounts to perversity warranting interference and judgment of acquittal was set aside and the Court convicted the accused for offence punishable under Section 138 of the Act. 6 . Looking to the impugned judgment and order it appears that learned Magistrate framed a solitary cumulative point for determination and proceeded to deliver judgment. In my view, the points for determination in such case must involve at least five ingredients which are required to be dealt with preferably by separate points for determinations. There are five vital ingredients of the offence punishable under Section 138 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on until the contrary is proved that the cheque was issued or drawn for consideration. It was bearing the same date on which it was made or drawn; that the holder of the negotiable instrument is holder in due course etc. under Section 118 of the Act and that the holder of a cheque had received it for the discharge of whole or part of any debt or liability. Under these circumstances, learned trial Magistrate ought to have observed that since signature on cheque was not disputed as that of the accused, the presumption envisaged in Section 118 of the Negotiable Instruments Act, as stated above, ought to have been raised that the cheque in question was made or drawn for consideration on the date which the cheque bears and further under Section 139 of the Act to raise a presumption that the complainant had received it for the discharge of existing debt or liability. The burden in such case is on the accused in view of the statutory presumption to rebut the presumption by leading adequate and satisfactory evidence to substantiate contention in defence to the prosecution. Although it is not necessary for the accused to enter into a witness box, the burden of proof is required to be discha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf to believe that Bhattad family was doing business of money-lending. Such conclusion cannot be reached without any rational basis from record. Learned trial Magistrate ought to have considered that in fact the application was made on behalf of accused during the pendency of proceedings about having settled the case by express willingness to pay sum of ₹ 40,000/- out of which amount of ₹ 10,000/- was already acknowledged by the complainant. For all these reasons the impugned judgment and order is indefensible and has resulted in miscarriage of justice. Necessarily, therefore, impugned judgment and order will have to be set aside looking to the above ingredients which have been satisfied in the facts and circumstances of the case and evidence led on behalf of the complainant, the accused is liable under Section 138 of the Negotiable Instruments Act for dishonoured cheque in the sum of ₹ 50,000/- which remained unpaid despite demand notice in writing issued against the accused which the accused duly received, but continued to avoid payment as against the cheque. The accused is, therefore, found guilty for offence punishable under Section 138 of the Act, 11. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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