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TMI Blog2022 (2) TMI 725X X X X Extracts X X X X X X X X Extracts X X X X ..... t is by placing reliance upon the presumption contemplated under Section 118(a) and 139 of Negotiable Instruments Act. It is true that the aforesaid Section 118(a) provides that unless contrary is proved it is to be presumed that a negotiable instrument has been made or drawn for consideration. Similarly, Section 139 provides that unless contrary is proved, the holder of the cheque received the cheque for discharge in whole or in part of debt or liability. However, the fact is that the presumptions contemplated under the aforesaid provisions are rebuttable. In order to rebut the presumption, the accused has to put forward a probable case and it is not at all necessary that it should be a case beyond reasonable doubt. It is a well settled position of law that the presumption can be treated as rebutted when the accused advances a probable case with evidence and the consideration for the same is not strict proof but only 'preponderance of probabilities' - there is overwhelming evidence in support of the case put forward by the 1st respondent. Right from the inception, he raised such a contention consistently and there are materials produced in support of the same. Therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by him against 1st respondent herein alleging offence punishable under Section 138 of Negotiable Instruments Act. 2. The case of the appellant is that, towards repayment of the amount which the 1st respondent borrowed from the appellant herein, a cheque dated 29.01.2005 was issued by the 1 st respondent for an amount ₹ 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 completion of prosecution evidence, the 1st respondent was examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the trial were put to him. He denied the said materials and contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... security for the release of the amount in favour of the 1 st respondent in connection with the chitty conducted by the said Joy Orathel. Even though the amounts repayable in respect of the chitty transaction were repaid along with interest accrued thereon, the said Joy Orathel did not return the said cheque leaves. Later, when he went to the office of M/s.Athira Finance, which is the establishment run by the said Joy, he found that the same was closed. Later, one Sunny Joseph who is a close relative of Joy Orathel had filed a criminal complaint by misusing the cheque bearing No.06363 before the Judicial First Class Magistrate Court - II, Thamarassery and a case was registered against the respondent as C.C. No.483/2001 for the offence under Section 138 of Negotiable Instruments Act. Similarly, by mis-utilizing the cheque bearing No.06362 another relative of the said Joy, Sri.Augustin Joseph filed another criminal complaint before the Judicial First Class Magistrate Court - II, Hosdurg as C.C. No.136/2002. Now the present complaint is filed by the appellant herein misusing the 3 rd cheque which was handed over to the said Joy. The above aspects are clearly mentioned in the reply noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t.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 cheque bearing registration No.06363 and Ext.D8 is the First Information Report registered in respect of the same. In that complaint also the case as mentioned above is specifically raised by the 1st respondent. 9. The main contention raised of the learned counsel of the appellant is by placing reliance upon the presumption contemplated under Section 118(a) and 139 of Negotiable Instruments Act. It is true that the aforesaid Section 118(a) provides that unless contrary is proved it is to be presumed that a negotiable instrument has been made or drawn for consideration. Similarly, Section 139 provides that unless contrary is proved, the holder of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments produced by the 1st respondent that the said cheque was already entrusted with Joy Orathel and there are no evidence available on record as to how it reached in the possession of the appellant. The contention of the appellant that it was handed over by the 1 st respondent himself on 28.01.2005 is not believable, in the light of the specific case put forward by the 1st respondent and the documents produced by him in support of his contention. The appellant also could not produce any documents indicating the payment of any amount to the 1 st respondent and also the source from which he paid the said amount. As observed by the learned Magistrate, the appellant is residing about 140 kilometers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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