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TMI Blog2023 (3) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... us as that of complainant are settled by various interpretations. Only question remains on the basis of facts, can it be said that the presumption got rebutted. The presumption can be rebutted by adducing own evidence or it can be rebutted by challenging the complainant s evidence. In this case, the similar question has arisen. The trial Court held that the offence is proved, whereas, First Appellate Court concluded that Accused succeeded in rebutting the presumption. The correctness of these findings are the subject matter of challenge before this Court. It can very well be said that the Respondent has made out a probable defence. Facts is of two kinds. One is positive fact and another is negative fact. It is difficult to prove negative fact. Similarly, it is difficult for the Respondent to prove that he has not received the plywood. As against this, it is easy to prove positive fact. So, it was the duty of the Appellant to prove that the plywood was in fact delivered. He has failed to do the same. The facts of case of M/s. Prajapati Oil Industry [ 2003 (11) TMI 644 - GUJARAT HIGH COURT ] can be differentiated. The conviction under Section 138 of NI Act was confirmed upt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala in the judgment in case of Sanjeev V/s. Triveni Credit Corporation 2006 SCC OnLine Ker 356 relied upon by the Appellant has also clarified this issue. The provisions of Section 357(3) of the Code of Criminal Procedure, 1973 [ Cr.P.C. ] were considered. If sentence of fine is imposed, there can be no resort to the provisions of Section 357(3) of Cr.P.C. So, the only issues arisen in this Appeal are :- a. whether the evidence given by the Respondent-Accused in rebuttal of the presumption is adequate or not and b. whether the findings of the First Appellate Court are correct or not. 4. I have heard learned Advocate Shri.Saurish Shetye for the Appellant, learned Advocate Shri.B.B.Tiwari for Respondent No.1-Accused and Shri.H.J.Dedhia APP for the Respondent No.2 State. Scope of Appeal 5. There was conviction order passed by the trial Court. Trial Court found all ingredients for an offence punishable under Section 138 of NI Act were proved. Whereas, this judgment was set aside by the Appellate Court mainly for two reasons. Here we are concerned only with the reversal of observations of the trial Court by the Appellate Court. When there is a judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, he could not produce the letter. 9. Respondent received cheque book containing those books in the year 2003. Two bank witnesses have said so. That is why, Respondent- Accused taken two pleas :- (a) There is no question of issuing cheque in the year 2005 when cheque book was issued in the year 2003. (b) When stop payment instructions were given in the year March-2004, the question of issuing cheques in the year 2005 does not arise. 10. The Appellant deposited all cheques in his bank Hindustan Cooperative Bank Ltd., Shivaji Nagar, Govandi Branch. All were dishonoured for the reason stop payment . Their details are as follows :- Sr.No. Cheque No. Date of Cheque Amount of Cheque Reason for Dishonour (i) 189559 31/03/2005 Rs.1,00,000/- Payment stopped by drawer (ii) 116145 31/03/2005 Rs.50,000 Payment stopped by drawer (iii) 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arties trust negotiable instruments. So, in order to boost it, these presumptions are incorporated in negotiable instrument. On one hand, there is a presumption attached to negotiable instrument and on the other hand, the drawer of the cheque is given liberty to rebut it. It is always a subject matter of challenge whether that presumption is rebutted or not. How it can be rebutted and whether rebuttal of presumption is as onerous as that of complainant are settled by various interpretations. Only question remains on the basis of facts, can it be said that the presumption got rebutted. 15. As said above, presumption can be rebutted by adducing own evidence or it can be rebutted by challenging the complainant s evidence. In this case, the similar question has arisen. The trial Court held that the offence is proved, whereas, First Appellate Court concluded that Accused succeeded in rebutting the presumption. The correctness of these findings are the subject matter of challenge before this Court. 16. After going through the citations, evidence and findings, I am of the considered view that the Appellate Court was right. I confirm those findings. I will give reasons for that con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admits during the cross-examination that he is not having acknowledgment for the delivery of plywood. 20. From the above, it can very well be said that the Respondent has made out a probable defence. Facts is of two kinds. One is positive fact and another is negative fact. It is difficult to prove negative fact. Similarly, it is difficult for the Respondent to prove that he has not received the plywood. As against this, it is easy to prove positive fact. So, it was the duty of the Appellant to prove that the plywood was in fact delivered. He has failed to do the same. The facts of case of M/s. Prajapati Oil Industry (supra) can be differentiated. The conviction under Section 138 of NI Act was confirmed upto High Court. Though accused pleaded no receipt of goods as a defence , he could not substantiate it. The accused has not protested for non receipt of goods. Herein, Accused has stopped payment of cheques and also made his stand clear in notice reply. 21. In view of that, there is no legally recoverable debt or liability which has accrued in his favour. The Appellate Court was right in concluding that the Respondent has rebutted the presumption. Hence, no case for interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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