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TMI Blog2022 (11) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... heque was given at the time of execution of the partnership deed, which as per the case of the petitioner was executed between the brother of the petitioner and the complainant - the evidence of the complainant, which fully supports the averments made in the complaint, has remained unrebutted. Learned counsel for the petitioner has not referred to any piece of evidence before this Court to show that the said evidence of CW-1 has been misread or misconstrued. Even the argument sought to be raised by learned counsel for the petitioner that the cheque was issued by the petitioner at the time of the execution of the partnership deed between the brother of the petitioner and the complainant, is highly unbelievable. Apart from the fact that there is no evidence to substantiate the said plea, it is also highly improbable that when two persons are entering into a partnership, then a third person would issue a blank signed cheque as security without there being any writing to the effect that the cheque has been issued for security purposes. Even the plea with respect to the loan amount being of Rs.3 lacs, whereas the cheque in question being to the tune of Rs.2,81,000/- is devoid of m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has been dismissed by the Additional Sessions Judge, Chandigarh. 2. Learned counsel for the petitioner has primarily raised two arguments to challenge the said judgments. The first argument raised is that the brother of the petitioner had entered into a partnership with the complainant and at the time of entering into the said partnership, the present petitioner had given a blank signed cheque for the purpose of security and the said cheque was not issued for the discharge of any legally enforceable debt. The second argument, which has been raised, is that although, as per the case of the complainant, the loan amount which was given by the complainant was to the tune of Rs.3 lacs, whereas the cheque in question was issued for an amount of Rs.2,81,000/- and the said fact would show that the case set up by the complainant is false inasmuch as, no one would issue a cheque for an amount of Rs.2,81,000/- in case the loan given was for an amount of Rs.3 lacs. 3. This Court has heard learned counsel for the petitioner and has perused the paper book. 4. Brief facts of the present case are that the respondent had filed a complaint under Section 138 N.I.A. against the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... effect that he had a business of Mango Garden in Sector 28-29, Chandigarh for the last 10-12 years and the fact that he used to earn Rs.1 lac annually as profit, was taken into consideration. It was also observed that the petitioner had not led any defence evidence in support of his pleas and thus, the evidence of the complainant on the said aspect as well as the other aspects remained unrebutted. With respect to the argument raised by the petitioner on the aspect of the cheque being a blank cheque signed by the petitioner, given at the time of the execution of partnership deed entered between the complainant and the brother of the petitioner, it was observed that the complainant had appeared in the witness box as CW-1 and had deposed on the lines of his complaint and even successfully stood the test of cross-examination. It was observed that said CW-1 had categorically stated that the petitioner had given the cheque in question in the month of October, 2013 and the same was duly filled up by the petitioner and no suggestion had been given to said CW-1 that at the time of execution of the partnership deed, a blank cheque was taken by the complainant from the accused. It was furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court shall presume the liability of the drawer of the cheques for the amounts for which the cheques are drawn. Following the judgment of this Court in State of Madras vs. Vaidyanatha Iyer, AIR 1958 Supreme Court 61, this Court held that it was obligatory on the Court to raise this presumption. 23. Section 139 introduces an exception to the general rule as to the burden of proof and shifts the onus on the accused. The presumption under Section 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. Presumptions are rules of evidence and do not conflict with the presumption of innocence, which requires the prosecution to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the nonexistence of the presumed fact as held in Hiten P. Dalal (supra). xxx xxx xxx 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the drawer against dishonoring his financial commitment but can also be legally and validly utilized towards the discharging of the liability of the Drawer. It cannot by any stretch be argued that a security cheque is not handed over or issued in pursuance of any undischarged liability. To hold so would defeat the whole purpose of a security cheque. In the considered opinion of the Court, a security cheque is an acknowledgment of liability on the part of the drawer that the cheque holder may use the security cheque as an alternate mode of discharging his/its liability. Thus the argument of the learned counsel for the petitioner that on dishonouring of a security cheque no offence punishable under section 138 of the Negotiable Instruments Act is made out. A perusal of the above judgment would show that it has been observed that even if a cheque is a security cheque, the same is an integral part of the commercial process and the same acts as a deterrent for the drawer against dishonouring his financial commitment and can also be used towards discharging the liability of the drawer. It is further held that to state otherwise, would defeat the whole purpose of a security cheque. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the execution of the partnership deed between the brother of the petitioner and the complainant, is highly unbelievable. Apart from the fact that there is no evidence to substantiate the said plea, it is also highly improbable that when two persons are entering into a partnership, then a third person would issue a blank signed cheque as security without there being any writing to the effect that the cheque has been issued for security purposes. The said plea, as has rightly been observed by the appellate Court, does not even remotely rebut the presumption under Section 139 N.I.A. in favour of the complainant. v) As has been recorded in paragraph 18 of the judgment of the Appellate Court, the petitioner had compromised the matter on 13.09.2019 and had stated that he would pay an amount of Rs.3.6 lacs in 12 installments and after having made the first installment of Rs.30,000/- on 21.10.2019, he had failed to appear before the Court and had not paid the balance amount. The said aspect has also not been rebutted before this Court. The same also shows that the petitioner has admitted his liability and thus, the same also adds to the fact that the issuance of cheque in question was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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