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TMI Blog2009 (10) TMI 989X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject cheque i.e. the cheque dated 30.12.2004 for Rs. 2,90,000/-. 3. The complainant sent a statutory notice to the accused. The accused replied the same. In the said reply, the accused alleged that the said cheque was stolen by the complainant when the complainant had visited the accused. The complainant did not file any reply. 4. The complainant filed complaint and examined himself in support of his case. The complainant also examined one Sophia Noronha to say that she was present when the subject cheque was given by the accused to the complainant. According to the complainant when Rs. 2,90,000/-was given to the accused one Maria Alva was present but admittedly, the said Maria Alva was not examined. The accused also exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt had only stated that it was a beach side property and it was going cheap. In other words, the learned Trial Court came to the conclusion that though not specifically stated in so many words that the complainant had failed to prove that the cheque was supported by any consideration. 7. Shri Bhobe, learned Counsel appearing on behalf of the complainant submitted that the only defence taken by the accused having been disproved and the complainant having had a cheque given by the accused there was no other option for the learned Trial Judge but to raise a presumption that the cheque was given towards a debt or liability towards the complainant and based on the same hold the complainant case as proved. 8. On the other hand, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nference to be drawn against the complainant. When such serious allegations were made the natural reaction of the complainant would have been to vehemently deny that the cheques were stolen and forged and fabricated by him and to have sent a rejoinder threatening the accused with legal action. 9. In the case of K. Prakashan v. P.K. Surenderan (2008) 1 SCC 258 the Apex Court has stated that it trite law that if two views are possible the Appellate Court shall not reverse the judgment of acquittal only because another view is possible to be taken. 10. In my view, the view taken by the learned Trial Court is only possible view which could be taken in the facts and circumstances of the case of the complainant who did not even examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. 12. Again in the case of Kumar Exports v. Sharma Carpets (2009) 2 SCC 513 the Apex Court has held that in the trial under Section 138 of the Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of the negotiable instrument is either proved or admitted. The Apex Court has further held that a presumption is not in itself evidence but only makes a prima facie case for a part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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