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TMI Blog2023 (7) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... reply at Exh. 45. He has stated that he has issued the cheque at the instance of one Bhalerao. Even in his statement under Section 313 of the Criminal Procedure Code, he has stated the same fact while answering question no. 4. If it is so then presumption under Section 139 of the Negotiable Instruments Act will come into picture or not and by way of seeing whether it is rebutted by the accused or whether the findings of the trial Court are correct or not. Rebuttal of presumption - HELD THAT:- It is settled law that the presumption can be rebutted by adducing evidence separately or by cross-examining the Complainant. In case of PANKAJ MEHRA VERSUS STATE OF MAHARASHTRA [ 2000 (2) TMI 718 - SUPREME COURT] there is observation of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant and not by him. It is sufficient to rebut the presumption - Learned Advocate for the Appellant relied upon these observations to contend that Respondent cannot take up a plea that there was no mercantile transaction. This argument is illogical. Because Section 139 of the Negotiable Instruments Act itself say about rebuttal of presumption. It is one thing to say that you cannot take up plea and another thing to say that plea is not proved. In this case defence taken by the accused was permissible and he has proved it also. There are no fault in the findings recorded by the trial Court. It cannot be said that findings are perverse. Hence no interference is wanted - appeal dismissed. - CRIMINAL APPEAL NO. 931 OF 2006 - - - Dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rverse that is to say given by neglecting a particular piece of evidence or by not considering a particular provision of the law it can be said to be a perverse findings. Just because two views are possible, there is no scope for interference. 5. There were two versions told by the parties before the trial Court. The complainant states that he has given on hire Poclain machine to the accused and he owes an amount to him. Towards discharge of that liability, he has issued two cheques for Rs. 1,00,000/- each. The case pertains to one of such cheque, whereas the accused has taken two defences. One is about denial of the liability and pleading that in fact machines were given on hire to one J. K. Construction owned by one Jugal Kishor Bansil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue was referred to the Division bench about maintainability of the complaint by unregistered firm. It is observed that bar under Section 69(2) of the Indian Partnership Act will not come in the way of the Complainant in filing the complaint under Section 138 of the Negotiable Instruments Act (para no. 17) 10. According to the learned Advocate for the Accused when trial Magistrate has decided this objection there was only one view prevailing as mentioned above. Be that it may it is clarified by the Division Bench that the complaint will be maintainable. This observation is required to be considered. Even though it may be true that this observation was not in force when the complaint was decided, however when the Appeal is argued, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e but refusal to make payment. 13. In case of K. Bhaskaran Vs. Sankaran Vaidhyan Balan and Anr. (1999) 7 Supreme Court 510, the Hon ble Supreme Court opined that once the signature on cheque is admitted, presumption comes into picture and burden is on accused to rebut the presumption, there cannot any dispute on this preposition of law. 14. As against this Mr. Joshi relied upon the observation in case of Rajaram S/O Sriramulu Naidu (since deceased) Through LRS. Vs. Maruthachalam (since deceased) Through LRs. 2023 LiveLaw (SC) 46 , the scope of the powers of the Appellate Court to interfere in a judgment of the acquittal are also interpreted. For rebutting the presumption the test of the preponderance of the probabilities has t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven on hire to him. He could have substantiated by producing the bills. No doubt he has examined P.W. No. 4 as a Poclain driver. But oral evidence will not dispense the filing of the documentary evidence. Once the machines are given on hire he ought to have some documentation. But that evidence was not produced on behalf of the Complainant. 19. So for this reason, I do not find any fault in the findings of the trial Court. On one hand he has denied the relationship with the Complainant and on the other hand he has brought on record through evidence of Mr. Tiwari that in fact it is Tiwari who has taken a machine on hire from the Complainant and not by him. It is sufficient to rebut the presumption. 20. On this background, it was necess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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