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TMI Blog2024 (2) TMI 811X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Complainant. No defence has been raised about such notice. No reply was given by the Accused to such legal notice. There is absolutely no defence raised by the Accused on receipt of legal notice issued by the Complainant. Thus once the signature on the cheque is admitted, the Court is duty bound to presume in favour of the Complainant that the cheque was issued for legally enforceable debt. In the case of BIR SINGH VERSUS MUKESH KUMAR [ 2019 (2) TMI 547 - SUPREME COURT ], the Apex Court considering the statutory presumption under Section 139 of the Negotiable Instruments Act and observed that on meaningful reading of the provision of the Negotiable Instruments Act, it makes amply clear that the person who signs the cheque and makes it over to the payee, remains liable himself unless he adduces evidence to rebut the presumption that the Cheque had been issued for payment of debt or in discharge of liability. It is immaterial that the cheque may have been held in by any person other then the drawer, if the cheque is duly signed by the Drawer. If the cheque is otherwise valid penal provision of the Section 138 would be attracted. In the present matter the documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utor for Respondent No. 2. 2. By this appeal, the Appellant/Complainant is challenging the impugned Judgment dated 31.07.2013 by which the learned Magistrate acquitted the Accused/Respondent No. 1 for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 3. The Appellant/Complainant filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 claiming therein that it is a Society registered under the Maharastra Co-operative Societies Act and carrying on its business having its branches including the one at Kurti Ponda, Goa. The Society is engaged in financial business by accepting deposits and advancing loans to its members. The Complainant was represented by its Field Assistant, duly authorised to file such complaint. It further claimed that Respondent No. 1/Accused being one of its members obtained loan of Rs. 6,00,000/-(Rupees Six Lakhs only) with agreement to repay it in instalments together with interest as per the terms and conditions imposed in the loan agreement and loan account number MVH/351. The Respondent No. 1/Accused committed defaults in paying the instalments together with interest and over due amount remained unpai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mit that entire case of the complainant is based on the documents which were produced and proved, however, the learned Magistrate gave more importance to the oral testimony by ignoring settled propositions that the documents/evidence cannot be discarded only on the basis of oral testimony. He would submit that the presumption under section 139 of Negotiable Instruments Act was not at all rebutted by the Respondent No. 1/Accused and thus the learned Magistrate was duty bound to convict the Respondent no. 1. 9. Per Contra, Mr. Sidhesh Shet appearing for the Respondent No. 1 would submit that the cross-examination of the Authorised Officer clearly destroyed the case of the Complainant and he failed to justify the amount which was outstanding as on date of issuance of cheque. He would therefore submit that though the documents were placed on record, oral evidence is contrary to such documents and thus no interference is necessary. 10. Rival contentions fall for determination as under:- (i) Whether Respondent No. 1 succeeded in rebutting presumption under Section 139 of Negotiable Act? 11. Answer is in the negative for the following reasons:- 12. Parties are hereinafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents and the amount paid by the Accused in such instalments. The specific suggestion was put to this witness which he denied and it reads thus:- It is not true to suggest that on 30.10.2012 the accused is not liable to pay Rs. 3,36,000/-(Rupees Three Lakhs Thirty-Six Thousand only) to the Complainant and that the Complainant has done illegal entries in the statement of account . 16. PW-1 during further cross-examination has categorically stated that outstanding amount includes loan, installment and other charges, however, he was unable to disclose or bifurcate such interest and other charges during further cross-examination. PW-1 then categorically stated that Accused is liable to pay cheque amount as on 30.10.2012 based on ledger Account produced at exhibit C-20 colly. 17. The disputed cheque is produced which show the signature of the Accused together with date and amount which has not been disputed at all. The cheque return memo shows that the cheque was returned for funds insufficient. The demand notice was issued to the Accused dated 20.11.2012 wherein all the details of the cheque, loan and the outstanding amount is mentioned. The Accused was asked to pay the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Negotiable Instruments Act and observed that on meaningful reading of the provision of the Negotiable Instruments Act, it makes amply clear that the person who signs the cheque and makes it over to the payee, remains liable himself unless he adduces evidence to rebut the presumption that the Cheque had been issued for payment of debt or in discharge of liability. It is immaterial that the cheque may have been held in by any person other then the drawer, if the cheque is duly signed by the Drawer. If the cheque is otherwise valid penal provision of the Section 138 would be attracted. The signed blank cheques involuntarily presented to some payee towards some payment and the payee by filling up the amount and other particulars would not itself invalidate the cheque and the onus would still be on the Accused to prove by adducing evidence that the cheque was not issued towards liability. 23. It is now a well-settled proposition of law that once the signature on the cheque is admitted by the Accused, the Court is duty bound to raise presumption in favour of the Complainant under Section 139 of the Negotiable Instruments Act. It is then for the Accused to rebut such presumption thou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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