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TMI Blog2016 (9) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... are identical and not subject to distinction then only the principle as laid can be applied. But there can be another way of looking at the precedent is that when the precedent interprets a provision having due regard to the scheme of the Act that can be imported for purpose of applying in the future cases - In this case, the petitioner did not adduce any evidence and the complainant, the respondent No. 1 herein, has proved that he provided the loan much before the cheques were issued. On the face of such evidence it cannot be held that the cheques [Exbt. 1 and 2] were issued for securing the loan. Moreover, when the cheques are admitted by the petitioner issued the court is bound to presume under Section 139 read with Section 118 of the N. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .12.2014 was challenged by the petitioner by fling an appeal under Section 374(3) of the Cr.P.C. being Criminal Appeal No. 03 of 2015 in the court of the Sessions Judge, West Tripura, Agartala. By the said judgment dated 23.11.2015, the appeal was dismissed observing that though the complainant [the respondent No. 1] in his examination-in-chief [filed by the affidavit] has stated that the accused issued the cheques 'to secure' the debt of Rs. 3,50,000/-, it is more than apparent that when the cheques were issued, already there was an outstanding loan taken by the accused with the promise to repay it after a month. So, despite using the words "to secure the debt" in his affidavit in chief and this not being the case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The only ground that was taken in the appeal is that two cheques were handed over by the accused-complainant as security to secure the loan for which Section 138 of the N.I. Act cannot be attracted. The said ground of objection has not been accepted by the impugned judgment assigning the reasons as noticed above. The similar ground has been asserted again to question the judgment dated 23.11.2015 by the petitioner. According to him, the cheques were for securing the loan not for discharging the liability. Unless the cheques [Negotiable Instruments] are issued for discharging the liability, no penal action under Section 138 can be taken. 3. There is no dispute that the complainant, the respondent No. 1 herein as PW-1 in his cross-examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by way of security. The said defence has been accepted as probable. If the defence is acceptable as probable the cheque therefore cannot be held to have been issued in discharge of the debt as, for example, if a cheque is issued for security or for any other purpose the same would not come within the purview of Section 138 of the Act." [Emphasis added] 5. Mr. Lodh, learned counsel appearing for the petitioner has also relied on another decision of the apex court in Sudhir Kumar Bhalla vs. Jagdish Chand & etc. etc. reported in AIR 2008 SC 2407, where it has been held as under: "On examination of the above-stated findings of the learned Single Judge in the judgment impugned before us, we find that the learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een laid down by a particular judgment has to be first construed in the backdrop of its peculiar circumstances. If the facts and circumstances are identical and not subject to distinction then only the principle as laid can be applied. But there can be another way of looking at the precedent is that when the precedent interprets a provision having due regard to the scheme of the Act that can be imported for purpose of applying in the future cases. In this case, the petitioner did not adduce any evidence and the complainant, the respondent No. 1 herein, has proved that he provided the loan much before the cheques were issued. On the face of such evidence it cannot be held that the cheques [Exbt. 1 and 2] were issued for securing the loan. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad occasion to observe on interpreting the Section 118(a) of the Act as follows: "Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove wo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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