9911796707
TMI Blog2022 (2) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... owed from the appellant herein, a cheque dated 29.01.2005 was issued by the 1 st respondent for an amount Rs. 3 lakhs. Upon presentation of the said cheque with his bank, the same was returned unpaid on 29.01.2005 with a memo containing an endorsement "funds insufficient". The dishonour of the said cheque was intimated to the 1 st respondent by way of a registered lawyer notice dated 02.02.2005 and calling upon him to pay the amount within 15 days. The notice was served upon him on 03.02.2005 and the 1st respondent sent reply raising untenable contentions. The complaint was submitted in the above circumstances. 3. In support of the averments in the complaint, the appellant got himself examined as PW1 and Exts.P1 to P6 were marked. After co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri.Shajimon T.B., learned counsel for the appellant and Sri.Noushad K.A., learned Public Prosecutor for the 2 nd respondent. Even though notice is served, there is no appearance for the 1st respondent/accused. 6. Learned counsel for the appellant contended that the finding entered by the learned Magistrate holding the 1 st respondent not guilty, is unsustainable. The learned counsel points out that, while deciding the issues involved in the above complaint, the learned Magistrate failed to appreciate the impact of presumption as contemplated under Sections 118(a) and 139 of Negotiable Instruments Act. 7. On examining the evidence available on record, it can be seen that, from the side of the appellant, he has produced six documents. Ext. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The above aspects are clearly mentioned in the reply notice sent by the respondent to the statutory notice issued by the appellant. Ext.D5 is the said reply notice, which is marked through DW1, who is the 1st respondent himself. 8. On going through the materials available, it can be seen that, the specific case of the appellant is that, an amount of Rs. 3 lakhs was borrowed by the 1st respondent from him, on 02.01.2005. It is also his case that when the aforesaid amount was demanded back the 1 st respondent issued a cheque on 28.01.2005. Thus the specific case of the appellant is that the cheque in question which is bearing No.06361 was issued to the appellant by the 1 st respondent on 28.01.2005, in discharge of a liability created by 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under Section 138 of Negotiable Instruments Act in respect of cheque bearing registration No.06362. In the said reply notice also the 1st respondent has specifically raised this contention. Ext.D4 is the acknowledgment card of the said reply notice. Ext.D5 is the reply notice sent on behalf of the 1 st respondent to the statutory notice issued by the appellant herein in respect of the cheque issued in this case. There also, the contention of misuse of the aforesaid three cheques with numbers of the said cheques were clearly mentioned. Ext.D6 is the acknowledgment card in respect of the same. Ext.D7 is the complaint submitted by the petitioner herein before the Judicial First Class Magistrate Court, Payyannur for misuse of the cheq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that out of the said three cheques the two cheques were used by Sunny Joseph and Agustin Joseph who were close relatives of the said Joy Orathel and initiated proceedings against the petitioner herein for the offences punishable under Section 138 of Negotiable Instruments Act. Ext.D1 also indicates that, even in the year 2001, the 1st respondent had filed a complaint against Joy Orathel and Sunny Joseph alleging misuse of the aforesaid cheque leaves. In the said complaint also the cheque number which is the subject matter of the complaint herein namely 06361 is specifically referred to. Therefore, there is overwhelming evidence in support of the case put forward by the 1st respondent. Right from the inception, he raised such a contention c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters away from the residence of the 1 st respondent and the 1st respondent is denying any acquaintance with the appellant as well. Despite the same, no attempt has been made by the appellant to prove the transaction by adducing any evidence. In such circumstances, the conclusion arrived at by the learned Magistrate to the effect that the appellant failed to prove execution of the cheque is a sustainable view. 11. The learned counsel for the appellant contended that, since the 1st respondent has admitted the signature, the presumption has to be drawn in his favour. It is true that the 1 st respondent has admitted the signature, but he never admitted that the said cheque was issued and handed over to the appellant herein. On the other hand, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
