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TMI Blog2022 (8) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... cheque in question belongs to him and they bear his signature. When the drawer has admitted the issuance of cheque as well as the signature present therein, the presumption envisaged under Section 118 read with Section 139 of NI Act would operate in favour of the complainant. The said provisions lays down a special rule of evidence applicable to negotiable instruments The trial court after examining all the evidences, both oral and documentary, concluded that on behalf of the complainant/O.P.No.2 sufficient material has been brought on record to prove that the complainant gave loan amount to the accused and in lieu of the loan amount accused issued cheque Ext.1 in favour of the complainant/O.P.No.2 and on presentation of the said cheque in the bank, it was dishonoured. Thereafter, legal notice was sent. These factual findings goes to show that all the requirements to establish a case under Section 138 of the N.I. Act has been fulfilled by the complainant. No interference is required so far as judgment of conviction is concerned and the same is hereby sustained. However, so far as compensation amount and sentence is concerned, the learned Appellate Court has sustained the compensati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... site Party No.2) firstly presented the cheque on 27.12.2008 in Bank but the same was dishonoured and later on, on the assurance of the petitioner, he claimed to have re-presented the cheque on 18.05.2009, but the same was dishonoured and a Cheque Return Memo dated 19.05.2009 was issued intimating Opposite Party No.2 regarding the dishonor of the said cheque bearing No. 891585 due to insufficient fund. The complainant claims to have thereafter given a notice to the petitioner on 10.06.2009 requesting the petitioner to make payment of the aforesaid amounting of Rs.7,20,000/- to the complainant within 15 days, but despite service of notice the accused did not repay the amount, rather submitted a reply through his lawyer on 19.06.2009 wherein it has been alleged that complainant never paid the sum of Rs.7,20,000/- to the petitioner but the said cheque was issued by the petitioner in favour of complainant as a security for investment in real estate business with the complainant which did not materialize and the complainant did not return the said cheque saying that the same was misplaced and now the complainant wants to utilize the said cheque in illegal manner and the petitioner disown ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enforceable debt. Specifically, the defence of the accused is that no payment was made by the complainant to him, in discharge of which the cheques have been issued. His defence was that the cheque was issued to the complainant on an assurance of a loan which would be obtained from a financial institution. This, as we have noted, was also the defence in reply to the notice of demand issued by the complainant. 15. Besides what has been set out above, an important facet in the matter was that the complainant failed to establish the source of funds which he is alleged to have utilised for the disbursal of the loan of Rs 15 lakhs to the appellant. During the course of his cross-examination, the complainant deposed that earlier, the appellant had furnished two cheques, one of ICICI Bank for Rs 5 lakhs and another of Canara Bank for Rs 10 lakhs which he had presented. The complainant admitted that he had not mentioned anything about the accused having issued these two cheques in his complaint. Nothing was stated by the complainant in regard to the fate of the earlier two cheques which were allegedly issued by the appellant. The non-disclosure of the facts pertaining to the earlier two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd the cheque issued by Rakesh Kumar Mishra, however, lost sight of the fact that the bank statement was already produced by the petitioner which was marked as Ext.F which showed the dishonor of the said cheque. The complainant despite opportunity and despite knowing Rakesh Kumar Mishra as a sole witness did not produce him before the trial Court which itself raises doubt on his case and in such circumstances, non-production of the witness named in the complaint petition shall give rise to various presumptions against the petitioner. He lastly submits that in view of the specific provision under the Income-tax Act, 1961, there is bar in making payment of such huge amount through cash. When the complainant in his deposition admitted that he had made payment through cash to the petitioner, he apparently claims that the act of lending money by cash was in violation of the specific provision of the Income-tax Act, 1961 and, therefore, no legality can be conferred to such transactions nor on the basis of transactions claimed by the complainant which otherwise is barred under law, the petitioner could not have been prosecuted in the instant case. Hence, impugned judgment is liable to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,000/- issued in favour of the complainant. Ext.-2 series are the cheque return memo which shows that on presentation of the said cheque in the bank it was dishonored. Thereafter vide Ext.-3 legal notice was sent. The postal receipt and the acknowledgement has been brought on record marked Ext.4 and Ext.5 respectively and the reply of the legal notice has been marked as Ext.6. All these documents brought on record shows that the cheque was issued by the accused in favour of the complainant and on its presentation in the bank it was dishonoured due to "insufficient fund". On the other hand, during course of argument, Mr. A. K. Das, learned counsel for the petitioner submits that cheque bearing no.891585 does not tally with the legal notice wherein the cheque bearing no.891584 has been written. Further he has said that as per Ext. E the cheque book was issued on 11.11.2008 then how the cheque was issued on July, 2007. 7. Considering the submission made on behalf of the petitioner and after perusing the LCR it appears that in the legal notice which is marked as Ext.3, cheque bearing no.891585 has been mentioned. However, it appears that in the last digit of the cheque number over wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence of a legally enforceable debt or liability, the prosecution fails. In T. Vasanthakumar V. Vijaykumari [(2015) 8 SCC 378] it has been held by the Hon'ble Apex Court that since the cheque as well as the signature has been accepted by the accused-respondent, the presumption under Section 139 would operate. Thus, the burden was on the accused to disprove the cheque or the existence of any legally recoverable debt or liability." 10. In the case in hand, the petitioner has not disputed cheque in question and signatures found therein. The petitioner admitted that cheque in question belongs to him and they bear his signature. When the drawer has admitted the issuance of cheque as well as the signature present therein, the presumption envisaged under Section 118 read with Section 139 of NI Act would operate in favour of the complainant. The said provisions lays down a special rule of evidence applicable to negotiable instruments. The presumption is one of law and there under the court shall presume that the instrument was endorsed for consideration. Further, in absence of contrary evidence on behalf of the petitioner, the presumption under section 118 and 139 of the NI A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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