9911796707
TMI Blog2021 (12) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... gnature, execution and handing over of the cheque are satisfactorily proved, the presumption under Section 139 of the NI Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature, execution and handing over of the cheque. There is absolutely no evidence adduced to rebut the said evidence. No evidence has been adduced by the accused to substantiate the defence plea that the cheque in question was issued in blank in connection with the transaction he had with the deceased brother of the complainant. This court under the exercise of jurisdiction under Section 397 read with 401 of Cr.P.C. cannot re-appreciate or re-evaluate the evidence - the revision peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onvicted for the said offence. He was sentenced to undergo simple imprisonment till the rising of court and to pay a fine of ₹ 2,25,000/-, in default to suffer simple imprisonment for a further period of three months. The fine amount on recovery was ordered to be paid to the complainant as compensation under 357 of Cr.P.C. In appeal, the appellate court confirmed the conviction and sentence. Aggrieved by the conviction and sentence passed by both the courts below, the accused preferred this revision petition. 4. I have heard Smt. N.P. Asha, the learned counsel for the revision petitioner and Sri. R.T. Pradeep, the learned counsel for the 1st respondent. 5. The learned counsel for the revision petitioner submitted that the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... que carries presumption of consideration in terms of S. 118(a) and under S. 139 of the N.I. Act. S. 118(a) and S. 139 read as under: 118. Presumptions as to negotiable instruments.--Until the contrary is proved, the following presumptions shall be made:-- (a) of consideration--that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration; 139. Presumption in favour of holder.--It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in S. 138 for the discharge, in whole or in part, of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heque in due course is required to prove that the cheque was issued by the accused and that when the same presented, it was not honoured. Since there is a statutory presumption of consideration, the burden is on the accused to rebut the presumption that the cheque was issued not for any debt or other liability . In Kumar Exports v. Sharma Carpets [ (2009) 2 SCC 513], the Supreme Court held that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused. Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signature. But, PW1 in categoric terms has deposed that the cheque in question was signed by the accused in his presence at the time of borrowal. There is nothing to disbelieve the said version. That apart, the accused did not take any steps to send the signature in Ext. P1 cheque for examination by a scientific expert. Once the signature, execution and handing over of the cheque are satisfactorily proved, the presumption under Section 139 of the NI Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature, execution and handing over of the cheque. There is absolutely no evidence adduced to rebut the said evidence. No evidence has been adduced by the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
