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TMI Blog2022 (11) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... accused in the complaint lodged by the respondent for the offence punishable under Section 138 of Negotiable Instruments Act. The crux of the complaint is that on 08.10.2002, the petitioners borrowed a sum of Rs.15,00,000/- to develop the export business. As requested by the petitioners, the respondent had lend a loan by way of two cheques dated 08.10.2002 of a sum of Rs.10,00,000/- and Rs.50,000/- drawn on ABN-AMRO Bank. It was duly en-cashed by the petitioners, who promised to repay the said loan with interest at the rate of 15%. They also executed two promissory notes in favour of the respondent herein. However, the petitioners failed to return the amount and as such the respondent caused notice on 15.09.2003. After repeated request by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... holder and as such the complaint is not maintainable as against him, to punish him for the offence under Section 138 of Negotiable Instruments Act. The cheques were returned dishonoured for the reason that the account was attached by the Provident Fund Commissioner. To attract the offence under Section 138 of Negotiable Instruments Act, the cheques should have been returned for insufficient funds or improper arrangement. Therefore, the endorsement of the account which is attached would not attract the offence under Section 138 of Negotiable Instruments Act. 5. A perusal of records revealed that the first petitioner is a Proprietrix of Arpan Exports. The second petitioner is the Mandate Holder of the said Arpan Exports. The second petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, 9 [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. Explanation.-For the purposes of this section, "debt of other liability" means a legally enforceable debt or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and P9 is inadmissible evidence. Hence, the respondent proved his case in terms of Sections 118 and 139 of Negotiable Instruments Act. Though, the said presumption is rebuttable in nature, it is the burden of the petitioners to rebut the said presumption. However, in order to rebut the said presumption, the petitioners neither produced any oral nor marked any documentary evidence. In fact, nothing was elicited from P.W.1 to rebut the presumption. 9. Therefore, both the Courts below rightly found the petitioners guilty for the offence punishable under Section 138 of Negotiable Instruments Act and this Court finds no infirmity or illegality in the orders passed by the Courts below and this revision is liable to be dismissed. 10. Accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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