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TMI Blog2021 (10) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... saction. In the totality of the facts and circumstance of this case, this Court should not interfere with the findings rendered by the trial court. The 2nd respondent/accused has succeeded in showing that the statutory presumption under Section 139 of the Negotiable Instruments Act should not be applied. In other words the 2nd respondent/accused has been able to rebut the statutory presumption. The appellant/complainant has not thereafter been able to bring in any evidence suggesting the existence of a transaction resulting in a legally enforceable debt payable by 2nd respondent/accused. The prosecution of the 2nd respondent/accused under Section 138 of the Negotiable Instruments Act must necessarily fail - this Court is of the view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent/accused. 4. Sri.Peeyus A. Kottam, the learned counsel appearing for the appellant would submit that the circumstances which led to the finding that the complainant has not proved his case can be seen (in summary) from paragraph 21 of the impugned judgment. He submits that the finding of the learned Magistrate that cheque No.327388 was issued before 5.6.1995 at the time when the complainant had advanced a loan of ₹ 40,000/- to the 2nd respondent/accused is incorrect. According to him, the circumstances taken into account by the learned Magistrate was that there was evidence to show that cheque bearing No.327387 was presented on 23.05.1995, cheque bearing No.327392 was presented on 10.06.1995, cheque bearing No.327393 was present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the case of the Complainant. The learned counsel also contends that there was nothing illegal in giving a personal loan just because the business of the complainant is that of money lending. The learned counsel for the appellant would rely on the judgment of the Supreme Court in Rohitbhai Jivanlal Patel v. State of Gujarat, (2019) 18 SCC 106 to contend that the principle that the appellate court would be slow in setting aside a judgment of acquittal that two views are possible could not be applicable in the case of a prosecution under Section 138 of the Negotiable Instruments Act. He would further rely on the judgment of the Supreme Court in M. Abbas Haji v. T.N. Channakeshava, (2019) 9 SCC 606 to contend that failure to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, the burden shifts to the complainant to prove consideration and on failure to do so, the accused is entitled to be acquitted. 6. I have considered the contentions raised. The first circumstance taken into account by the learned Magistrate to hold that the 2nd respondent/accused was entitled to an acquittal is the fact that cheque No.327388(the subject cheque) could not have been one which was issued close to the time at which it was stated to have been issued. According to the appellant/complainant, the loan of ₹ 1,70,000/- was given on 26.12.2000 and in the discharge of this debt, the subject cheque bearing No.327388 was issued on 30.12.2000. Based on the evidence tendered by the 2nd respondent/accused, the learned Magistra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cheques issued by the complainant on 18.04.1995 and 29.04.1995. The loan of ₹ 1,70,000/- was reportedly given on 26.12.2000. It is highly improbable that a cheque leaf from a cheque book that got exhausted on 07.02.1996 would have been used on 30.12.2000 in the discharge of a liability for a loan taken on 26.12.2000. Therefore, I am in complete agreement with the view taken by the learned Magistrate that there is evidence to show that the cheque in question was not issued in discharge of the alleged liability of ₹ 1,70,000/-. 7. The learned Magistrate has also found from Exts.D2 and D3 that the earlier loan stood discharged. Though the appellant/complainant disputed the fact that the earlier loan had been discharged, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssful in rebutting the statutory presumption under Section 139 of the Negotiable Instruments Act. The fact that there was an earlier transaction in the year 1995 and that liability had been settled by repayment is a factor which would lend credence to the case of the 2nd respondent/accused that Ext.P1 cheque was one issued as security in the discharge of that liability and such cheque was misused by the appellant/complainant to make it appear that there was a subsequent transaction. In the totality of the facts and circumstance of this case, this Court should not interfere with the findings rendered by the trial court. As held by this Court in Basheer K (supra) when the accused has succeeded in rebutting the presumption, it is for the compl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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