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TMI Blog2023 (6) TMI 1148X X X X Extracts X X X X X X X X Extracts X X X X ..... are fulfilled while presenting the cheque and thereafter, by issuing legal notice, the Magistrate is duty bound to draw a presumption under Section 139 of the N.I. Act in favour of the Complainant that such cheque is issued towards legally enforceable debt. The cheque in question was issued by the Accused, which is not at all disputed. The question which the Accused tried to raise is that such a cheque is not issued towards the supply of material. The burden of this aspect in order to rebut the presumption under Section 139 of the N.I. Act is certainly on the Accused. The cross examination of the Complainant shows only suggestions given to the Complainant to that effect. The delivery challans are produced by the Complainant, which w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and Accused as arrayed before the Trial Court. 3. Heard Mr. Anthony D Silva, the learned Counsel for the Appellant-Complainant and Mr. Arjun Naik, the learned Counsel for the Respondent-Accused. 4. With the assistance of the learned Counsel for the parties, I have perused the entire paper book and more specifically, the cross examination of the Complainant and the findings in the impugned order. 5. The learned Counsel for the Appellant would submit that the only ground on which the Accused/Respondent was acquitted is that the Complainant failed to disclose in his statement of Account the amount which was due to him from the Accused for the year ending 31.03.2015. The learned Counsel for the Appellant submitted that the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther with my findings against it:- (i) Whether the Respondent/Accused succeeded in rebutting the presumption under Section 139 of the N.I. Act ? (ii) Whether the learned Magistrate erred in shifting such burden on the Complainant ? 9. The complaint was filed under Section 138 of the N.I. Act claiming therein that the Complainant supplied construction material/raw material to the Accused and a cheque of Rs. 2 lakhs was issued towards such material supplied. When the cheque was presented for encashing, the same was returned unpaid. A notice was issued to the Accused to pay the amount mentioned in the cheque, however, inspite of receipt of such notice, no payment was forthcoming. 10. The Accused replied to the said notice and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said case while answering the last question. 12. The learned Trial Court framed the points for determination which are found in paragraph 8. First of all, it is necessary to note that even though there is no denial on the part of the Accused about the signature, date and other details on the cheque, the learned Trial Court failed to consider the presumption under Section 139 of the N.I. Act which ought to have been drawn in favour of the Complainant. By ignoring such mandatory presumption, the learned Magistrate framed point no. 1 thereby putting the burden on the Complainant himself, to prove that the cheque in question was issued in discharge of legally enforceable debt and liability and surprisingly, answered it in the negative. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but the presumption under Section 139 of the N.I. Act is certainly on the Accused. 16. The cross examination of the Complainant shows only suggestions given to the Complainant to that effect. The delivery challans are produced by the Complainant, which were disbelieved by the Trial Court on the precise ground that the signature on the said delivery challans are not matching with the signature of the Accused. First of all, it has to be taken into account that in normal business transactions, the delivery challans are issued and handed over to the person who is present at the site. The person who receives the material at the site normally signs such delivery challans. Therefore, comparing the signature of the Accused where there is no deni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Respondent/ Accused on the point of sentence, I pass the following order: ORDER (a) The Respondent/Accused stands convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and is sentenced to suffer imprisonment for a period of 15 days and to pay compensation of double the amount of the cheque i.e. Rs. 4,00,000/- (Rupees Four Lakhs only), which shall be deposited within a period of one month from today, failing which, the Accused shall undergo simple imprisonment for a period of 10 days. (b) The Respondent/Accused shall surrender before the learned Magistrate within a period of ten days for undergoing the sentence. If the Respondent/ Accused fails to surrender within the above time, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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