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TMI Blog2003 (3) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... common judgment. 3. From the materials placed on record and upon hearing the learned counsel for the appellants and the respondent as well, it comes to be known that the amount borrowed by the accused from the complainant in the first of the above criminal appeals is Rs.6,44,275/= and the same in the second of the above criminal appeals is Rs.12,55,525/=; that the dates on which the post dated cheques issued were respectively 10.2.2001 and 7.2.2001 and they have been presented on the same date and since the same had been returned for `insufficiency of funds' on 9.2.2001, on receipt of the returned cheques on 20.2.2001 and with no reply given to the notice issued by the appellants, the complaints have been lodged on 21.3.2001. 4. On the part of the learned Senior Counsel appearing on behalf of the appellants, it would be submitted that on two grounds in both the above complaints, the accused has been acquitted; i) that there was no legally enforceable liability since the cheque was obtained by force with the help of the Police (para-8 of the judgment) and ii) that the complaint was barred by limitation (para-9 of the judgment) 5. On the contrary, the learned Seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing reasonable possibility of the non-existence of the presumed fact. ii) 2002 SCC Cri 14 (K.N. BEENA V. MUNIYAPPAN AND ANOTHER ) wherein the Honourable Apex Court has held: Under Section 118, unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under Section 139 the Court has to presume, unless the contrary was proved, that the holder of the cheque received the cheque for discharge, in whole or in part, of a debt or liability. Thus in complaints under Section 138, the Court has to presume that the cheque had been issued for a debt or liability. This presumption is rebuttable. However, the burden of proving that a cheque had not been issued for a debt or liability is on the accused. This Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee has also taken an identical view. iii) (SUGANTHI SURESH KUMAR VS. JAGADEESHAN ) (Para-12) The total amount covered by the cheques involved in the present two cases was Rs.4,50,000. There is no case for the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich stress was laid by the appellants is that the complaints have been presented on 21.3.2001 that the date of return of the cheques was on 9.2.2001; that the legal notices have been issued on 19.2.2001, which have been received on 20.2.2001 and the accused is permitted a time of fifteen days thereafter to settle the dues as per the legal notice, which shall be computed from the date of receipt of the notice by the accused on 20.2.2001. Hence, the fifteen days came to close on 10.3.2001 and the complaints having been filed on 21.3.2001, they were well within the time. 8. A perusal of the judgments of the trial court would reveal that the trial court has conducted a trial with due opportunities for both parties to exhaust their remedies during which three witnesses have been examined on the part of the appellants as P.Ws.1 to 3 and two witnesses have been examined on the part of the accused as D.Ws.1 and 2. Apart from these oral evidences let in, eight documents have also been marked on the part of the appellants as Exs.P1 to P8, Ex.P1 being the General Power of Attorney, Ex.P2 being the cheque, Ex.P3 being the Return Memo., Ex.P4 being the Debit Advise, Ex.P5 being the copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and even the failure to give a reply rebutting the allegations of legal notice issued by the complainants to the accused, which are mandatorily to be complied with on the part of the accused. Regarding the cheques, the moment bounced cheques have been produced before the Court, presumption under Section 139 of the Negotiable Instruments Act legally operates and it is the duty of the Court to presume in the manner stipulated under Section 139 of the Negotiable Instruments Act and the only question that is to be posed is `whether such a strong case preliminarily put up on the part of the complainants have been shattered or disproved by the accused with proper and strong evidence?' 11. It is not the defence case of the accused that he did not borrow from the complainants much less the cheque borne amounts. The admitted case on the part of the accused is that he was terribly in debt and was absconding without honoring his commitments, as a result of which the complainants lodged criminal complaints before the Police against him. Without deciding this issue, the Magistrate has jumped to the second stage of having extracted from the accused these cheques in exercise of undue infl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the complaint was well within time. The Magistrate must know that it is relevant for computation of period, the date of presentment of the complaint before the Court and not the date on which the Magistrate puts his signature or when it is being numbered and therefore, since the Magistrate has failed to offer the date of actual presentment of the complaint before the Court but held on malicious grounds that the complaint has not been presented in time, the same cannot be accepted as reasonable and therefore, at this score also the judgment of the trial court fails. 13. In short, the judgments of the trial court suffer from patent errors of law and perversity in approach and therefore become only liable to be set aside and hence the following judgment: In result, i) Both the above criminal appeals succeed and they are allowed. ii) The judgments dated 23.8.2002 rendered in C.C. Nos. 4219 4220 of 2001 by the Court of XIII Metropolitan Magistrate, Egmore, Chennai are set aside. iii). The accused is found guilty of the offence under Section 138 of the Negotiable Instruments Act in both the cases above and sentenced to undergo conviction for a period of six months in eac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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