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TMI Blog2022 (6) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... t within 15 days of the receipt of the notice - Section 139 of the N.I. Act says, it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. On perusal of Ex. P1-cheque, which indicates that there are two signatures found on it. The Respondent has denied the signature affixed in the amount corrected. No effort has been made to prove the signature of the Respondent. The Appellant admitted that the Respondent had a money transaction with his mother-in-law and his mother-in-law has died. A specific question was put to the Appellant during cross-examination that he had no financial capacit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths. The Respondent borrowed the loan from the Appellant to extend the class building of the school and to purchase furniture. In lieu of having received the amount from the Appellant, the Respondent has issued a cheque bearing No. 232856 dated 25.06.2007 for a sum of Rs. 4 lakhs drawn on Central Bank of India, Kathriguppe, Bengaluru. 3. When the Appellant presented the said cheque through his banker on 05.07.2007, he received a message from the Bank that the cheque had been dishonored, with a shara as funds insufficient . The Appellant had issued a legal notice on 03.08.2007 both by RPAD and UCOP. Despite the service of notice, the respondent neither replied nor paid the cheque amount. Hence, the appellant/complainant has lodged the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he had borrowed a sum of Rs. 50,000/- from the mother-in-law of the Appellant, and he has cleared the amount. In spite of having cleared the amount which he has borrowed from the mother-in-law of the Appellant, it has been misused by the complainant. The cheque in question had been issued for security. The mere allegation about the transaction would not be sufficient to rebut the presumption. Hence, the Respondent is entitled to repay the amount mentioned in Ex. P1-cheque. As such, learned Amicus Curiae sought to allow the appeal. Learned Amicus Curiae relied on the judgment of the Hon'ble Supreme Court in the case of ROHIT BHAI JIVANLAL PATEL VS. STATE OF GUJARAT ANOTHER, reported in AIR 2019 SC 1876. 9. Per contra, Sri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the development of the school building and also for purchase of furniture. The Appellant, though he had no sufficient money as on that day, borrowed from his co-brother-PW. 2 and handed over the amount to the Respondent. The Respondent in lieu of the said financial transaction, as a token of security, issued a cheque for a sum of Rs. 4 lakhs to the Appellant. 12. The Respondent took a defence that he has not borrowed the amount from the Appellant at any point of time and he has received the amount from the mother-in-law of the Appellant namely Smt. Gowramma, in a sum of Rs. 50,000/- only, and he further admits that he had issued a signed blank cheque as collateral security. The said cheque, after the death of Smt. Gowramma, has been mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, the contention of PW. 1 regarding the source of income which he has borrowed from PW. 2 to lend the amount to the Respondent in the year 2006 is doubtful and not tenable. 14. The offence punishable under section 138 of N.I. Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the offence. (1) drawing of the cheque, (2) presentation of cheque to the bank, (3) returning the cheque unpaid by the drawee Bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the dishonoured cheque amount, (5) failure of the drawer to make payment within 15 days of the receipt of the notice. Section 139 of the N.I. Act says, it shall be presumed, unless the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of the Respondent about issuance of the cheque as collateral security to Smt. Gowramma, who is none other than the mother-in-law of the Appellant, cannot be denied. 17. In view of the observations made above, I answer the points which arose for consideration. Point No. 1 is answered in 'Affirmative', by holding that the trial Court is justified in acquitting the accused for the offence punishable under section 138 of N.I. Act. Point No. 2 is answered in the 'Negative,' by holding that the Appellant has not made out grounds to interfere in the order of acquittal passed by the trial Court. 18. With the above observations, I pass the following:- ORDER (i) The appeal filed by the appellant/complainant is dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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