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TMI Blog2013 (8) TMI 1184X X X X Extracts X X X X X X X X Extracts X X X X ..... eek of January 2002. The respondent No. 2 had allegedly issued a cheque bearing No. 958882 dated 4.1.2002 for a sum of ` 72,000/- drawn on Bank of Maharashtra, Vivek Vihar in favour of the petitioner towards the discharge of his liability. However, as per the memo dated 15.3.2002, issued by the bankers of the petitioner, when he had presented the said cheque for encashment, the same was dishonoured and returned on account of insufficient funds. Thereafter, the petitioner had issued a legal notice dated 26.3.2002 to the respondent No. 2 demanding the aforesaid amount. Respondent No. 2 had replied to the said legal notice and had stated that the cheque in question had been stolen and he had lodged a complaint with the local police in that regard and further, that he had informed his bankers to stop payment of the said cheque by sending a written intimation to that effect. 2. The petitioner then filed a complaint the against the respondent under Section 138 of the Act on 27.4.2002. In the course of the trial, the complainant had examined himself as CW-1 and the clerk of Bank of Maharashtra as CW-2. The accused had examined himself as DW-1. He had also examined two other witnesses, Sh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned judgment in the light of the evidence placed before the trial court and the arguments advanced. 6. It is a settled legal position that under the scheme of Negotiable Instruments Act, a statutory presumption has been created in favour of the holder of the negotiable instrument in due course. Section 139 stipulates that the Court shall presume liability of the drawer of the cheque for the amount for which the cheque is drawn and Section 118 envisages that unless the contrary is proved, it shall be presumed that the negotiable instrument including a cheque has been drawn for consideration [Ref: 2001 V AD (S.C.) 260 (2001) 6 SCC 16 entitled Hiten P. Dalal Vs. Bratindranath Banerjee] 7. Although the Court is under an obligation to raise the presumption contemplated under Sections 118, 138 and 139 in every case, where the factual basis for raising the presumption has been established by the complainant, the accused is required to raise a probable defence or rebut such a presumption by leading evidence or bringing such facts on record in the cross-examination of the complainant that could make the latter's case improbable. For doing so, it is not necessary for the accused to dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entry is marked as DW-2/B. 9. Taking into consideration the deposition of the clerk from the bank (CW-2 and DW-2), the appellate court arrived at the conclusion that there were sufficient funds in the account of the respondent No. 2 on the date, when the cheque in question was presented for encashment and that being the position, it could not be stated that the cheque was returned on the said date due to insufficiency of funds. The appellate court also took into consideration the legal notice dated 26.03.2002 (Ex. CW1/C) issued by the petitioner/complainant to the respondent No. 2 demanding payment of the sum of ` 72,000/- and the reply to the said notice sent through the respondent No. 2's counsel (Ex. DW1/H). In his reply, the respondent No. 2 had duly stated that intimation of the disputed cheque going missing had been conveyed to his banker vide letter dated 18.01.2002 and a reminder had also been issued on 03.02.2002 and besides the above, a report in this regard was lodged with Police Station: Surya Nagar, Ghaziabad. The aforesaid explanation answers the objection taken by the counsel for the petitioner/ complainant that the respondent No. 2 had failed to explain that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ross-examination, the petitioner had revealed three sources from where he had arranged the sum of ` 72,000/- for allegedly extending a loan to the respondent No. 2, which included a sum of ` 25,000/- taken from his father, some money lying in his house and some money withdrawn from his bank. However, CW-2, the clerk summoned by the petitioner from the bank had produced the records that had failed to show withdrawal of any amount by the petitioner from his bank at the relevant time 12. The aforesaid fact was also noticed by the learned MM in his judgment, but no adverse inference had been drawn against the petitioner on that basis. However, the appellate court did notice this oversight by the trial court and had observed that the petitioner had failed to produce any document of his income or his financial position to show that he was capable of advancing a friendly loan of ` 72,000/- to the respondent. The petitioner/complainant having failed to prove that he had a financial capacity to extend the loan amount to the respondent, the obvious conclusion would then be that the respondent had succeeded in rebutting the presumption under Section 118(a) and Section 139 of the Negotiable In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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