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TMI Blog2023 (11) TMI 1118X X X X Extracts X X X X X X X X Extracts X X X X ..... e being issued towards discharge of legally recoverable debt as on the date of the presentation of the cheque. It is a settled legal position that in absence of any challenge to the signature on the disputed cheque, the statutory presumption available under Section 118 and Section 139 of the Act comes into play. The aforesaid statutory provision permits the Court to raise presumption against the respondent accused. The onus is upon the accused on the issuance of cheque to rebut the presumption that the cheque was not issued for discharge of any debt or liability under Section 138 of the Act. However, such presumption is subject to probable defence to be raised by the accused to create doubt with regard to existence of any debt or liability. In case of Rangappa Vs. Sri Mohan [ 2010 (5) TMI 391 - SUPREME COURT ], the Hon ble Supreme Court held that the standard of proof to discharge of such presumption can be in the form of probable defence which is weighed on the scale of preponderance of probabilities - As noticed hereinabove, in the present matter, the learned Court below has consciously and carefully taken into consideration this aspect, which has emerged on record to arri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lainant that once again, the accused had borrowed the amount of Rs.2 Lakhs on 01.10.2015 and thereafter, an amount of Rs.1,49,000/- on 13.10.2015. Thus, the total outstanding amount to be realized from the accused was Rs.8,89,000/-. It is further contended that lastly the accused had approached the complainant on 04.04.2016 for financial assistance for an amount of Rs.1,50,000/-. Against which the complainant claims to have paid an amount of Rs.1 Lakh. Thus, it is the case of the complainant that the total amount to be recovered was Rs.9,99,000/-, which was otherwise assured by the respondent accused to be repaid. 2.2 It is further contended in the complaint that against the aforesaid outstanding amount of Rs.9,99,000/-, the respondent accused had issued a cheque dated 05.11.2016. It was mutually agreed that if the amount is realized prior to the maturity period, such cheque shall be returned back to the accused. Since the accused had failed to make repayment before the maturity date, the complainant had approached the accused, who had instructed him to present a cheque for realization of the outstanding amount. Accordingly, the complainant had presented the said cheque on 05.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contended that the complainant is engaged in the business of lending hand loan by charging interest and having borrowed from the complainant, the blank cheque was handed over to the complainant. Though the amount has been realized, the complainant, by incorporating the false details of the amount in the disputed cheque, has raised false claims against the accused. It was therefore urged by the accused not to entertain the complaint. 2.6 The learned Magistrate upon appreciation of the evidence being brought on record by the original complainant, after taking into consideration the relevant statutory provisions of the Act, has prima facie noted that the mandatory provisions of Section 138(a), 138(b), 138(c) and 140(b) of the Negotiable Instruments Act have been satisfied. Upon appreciation of the relevant documents, the learned Special Judge has found that the complaint is maintainable as filed within the prescribed period of limitation. 2.7 Learned Special Judge has thereafter proceeded to examine the merits of the case. During the course of evaluation of the evidence of the complainant, the learned Magistrate has noticed the discrepancies in the figure of the outstanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances, the burden had continued upon the respondent accused to establish his defence of misuse of blank security cheque. He further emphasized on the fact that in absence of any evidence being led by the respondent accused, there was no rebuttal of presumption in the eyes of law and thus, the learned Magistrate having satisfied with the compliance of the basic ingredients of Section 138 of the Negotiable Instruments Act, the accused ought to have been convicted for the said offence. He, therefore, urged this Court that an arguable case lies to grant special leave to appeal and let the evidence be closely re-appreciated by this Court after admission of the appeal. 4. In support of his submissions, the learned advocate has placed reliance upon the judgment of the Hon ble Supreme Court in the case of Uttam Ram Vs. Devinder Singh Hudan and Anr. reported in (2019) 10 Supreme Court Cases 287. He further submitted a similar set of facts, even where inconsistency in the amount was noticed and the defence was raised that the cheque was stolen and misused, the Hon ble Supreme Court had disapproved the approach of the Court below as the complainant was expected to prove his debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held guilty of the alleged offence. Learned advocate has further relied upon judgment of the Bombay High Court in the case of M/s. Pinak Bharat and Company Vs. Shri Anil Ramrao Naik and Ors. reported in 2023(2) Mh. LJ (Cri.) 183 for the proposition of law that incorporation of date on cheque without authority of the accused amounts to material alterations in the cheque, which could not attract the offence punishable under Section 138 of the Act. By making aforesaid submissions, learned advocate submitted that no arguable case is made to consider the appeal for admission and has urged this Court to dismiss the leave against the order impugned. 7. Having heard learned advocates appearing for the respective parties and having perused the order impugned as well as authorities relied upon, this Court is called upon at this in present application as well as in appeal as to whether the judgment under challenge is perverse, illegal, erroneous, warranting any interference at the hands of this Court. 8. It is not in dispute that various transactions had taken place between the parties to the proceedings. The issuance of cheque and the signature on the cheques has not been disputed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken into consideration this aspect, which has emerged on record to arrive at finding with regard to the discrepancy in the amount dues to be realized from the respondent accused, coupled with the fact that the original complainant has failed to offer any explanation with regard to the additional amount of Rs.1 Lakh. In my opinion, no fault can be found in the approach of the learned Magistrate in shifting the burden upon the original accused to prove his case beyond reasonable doubt. The discrepancy noted in the amount due against the respondent accused against which the cheque is alleged to have been issued goes to the root of the matter, which can be treated as material contradiction. 9. So far as judgment relied upon by the learned advocate for the applicant in the case of Uttam Ram (Supra) is concerned, the Court notices that though the Hon ble Supreme Court at one stage disapproved the approach of the Court below taking into consideration the discrepancy in determining the amount dues as against the cheque issued, it has clearly transpired that the Court was guided by the fact that there exists written document which crystallizes the amount due, for which the cheque was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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