9911796707
TMI Blog2022 (11) TMI 1322X X X X Extracts X X X X X X X X Extracts X X X X ..... includes a presumption that there exists a legally enforceable debt or liability. However, the presumption under Section 139 of the N.I. Act is rebuttable and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. The impugned judgment is set aside with an order of remit to the High Court, to decide the appeal on the basis that the appellant is entitled to the benefit of presumption under Section 139 of the N.I. Act. Thereupon, the High Court will consider the evidence and the material on record to decide whether the offence under Section 138 of the N.I. Act is established and made out. Appeal allowed. - Criminal Appeal No. ......... of 2022 (@ SLP (Crl.) No(s) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... K. Abraham v. Simon C. Abraham , (2014) 2 SCC 236. It is an accepted and admitted position that the respondent accepts his signature on the aforesaid cheque. Interestingly, the respondent had issued notice marked as Exhibit -P3, in which he has stated that the appellant - Jain P. Jose had given loan of Rs. 5 lakhs, albeit, claimed that the loan was taken by the respondent's brother-in-law Anil. In the notice (Exhibit -P3), the respondent claimed that he had given the aforesaid cheque signed by him to his brother-in-law Anil from whom he had taken a loan of Rs. 5 lakhs. Subsequently, his brother-in-law - Anil was involved in criminal cases. In the aforesaid factual background, we do not think that the High Court was right in ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. xx xx xx 139. Presumption in favour of holder.-It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability. Referring the Sections of the N.I. Act, a three Judges Bench of this Court in T. Vasanthakumar Vs. Vijaykumari (2015) 8 SCC 378, has held: 9. Therefore, in the present case 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Once the 2nd appellant had admitted his signatures on the cheque and the deed, the trial Court ought to have presumed that the cheque was issued as consideration for a legally enforceable debt. The trial Court fell in error when it called upon the respondent complainant to explain the circumstances under which the appellants were liable to pay. Such approach of the trial Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law. xx xx xx 17. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
