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TMI Blog2022 (1) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... he cheque which was collected by the appellant as part of the chitty transaction at an earlier point of time and it was later misused by the appellant by entering figures therein - the exact figure may not find a place in those statements as the amount mentioned in Ext.P2 cheque is the aggregate of the total arrears. In the light of presumption under Section 139 of the Negotiable Instruments Act, the appellant is entitled to succeed. In this case, the 1st respondent could not make out any case by adducing any evidence or otherwise to rebut the presumption available in favour of the appellant. In the light of the presumption under Section 139 which stands unrebutted and also the supporting materials in the form of Exts.P8 and P9 series, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nth of July, 2007 and the amount was received by him. However, he defaulted the payments towards prize chits and as on 11.4.2011 an amount of ₹ 1,88,900/- become due. In discharge of the said liability, the 1st respondent issued a cheque bearing No.518046 for ₹ 1,88,900/- drawn on Indian Overseas Bank, Adoor branch. However, the said cheque was dishonoured when presented for collection through North Malabar Gramin Bank, Anchal branch on the reason that the funds were insufficient. Thereupon, statutory notice was sent by the appellant to the accused but he failed to pay the amount or sent any reply. The complaint was submitted in such circumstances. 3. In support of the contention put forward by the appellant/complainant, PWs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1st respondent opposes the said contention by pointing out that the judgment rendered by the learned Magistrate is legally sustainable and it does not suffer from any legal infirmity warranting any interference of this Court. 8. Section 118 of the Negotiable Instruments Act contemplates a presumption that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred. The aforesaid provision reads as follows: Section 118 in The Negotiable Instruments Act, 1881 118 Presumptions as to negotiable instruments. -Until the contrary is proved, the following presumptions shall be made:- (a) of consideration -that every negotiable instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred to in Section 138 for the discharge, in whole or in part, of any debt or other liability. Therefore, once it is proved that a negotiable instrument has been executed and handed over to the payee thereof the presumption as contemplated under the aforesaid provision comes into play. Unless the said presumption is rebutted by the accused by adducing some evidence, the court has to proceed on the basis of existence of a legal liability towards the complainant. In Bir Singh s case (supra) this Court observed as follows: 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under S.139 that the cheque has been issued in discharge of a debt or liability is on the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... truments 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 S.139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt. 9. In this case, the defence put forward by the 1st respondent is that the cheque which was collected by the appellant as part of the chitty transaction at an earlier point of time and it was later misused by the appellant by entering figures therein. It was specifically contended by the 1st respondent that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny such evidence rebutting the said presumption, it has to be held that Ext.P2 cheque was drawn in discharge of an existing liability. Thus in the light of the presumption under Section 139 which stands unrebutted and also the supporting materials in the form of Exts.P8 and P9 series, I find that the cheque was issued in discharge of a legal liability towards the appellant herein. 10. The legal requirements for attracting the offence under Section 138 of the Negotiable Instruments Act regarding the issuance of notice and timeline to be followed before initiating the proceedings are seen duly complied with. In such circumstances, considering the materials available on record, I am of the view that the offence under Section 138 of the Nego ..... X X X X Extracts X X X X X X X X Extracts X X X X
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