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TMI Blog2024 (9) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court for leave to appeal and leave has already been granted. This matter is being finally disposed off by this Court. 2. Heard the parties and perused the records. 3. The case and claim of the appellant is that he had advanced Rs.4,39,000/- to the sole respondent and to ensure repayment of the same, the sole respondent had issued cheque no. 626216 on 12.5.2009 of Rs.4,39,000/- (Ex.1). The cheque was presented to the bank and the bank returned it due to "insufficient funds" on 29.05.2009 (Ex.2). Thereafter, legal notice was sent to the sole respondent on 24.6.2009 (Ex.3). A copy of the registered receipts etc. are (Ex.5, Ex.6 and Ex.7). On failure of the sole respondent to pay back the cheque amount, the complaint was filed on 16.7.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to the accused. Learned trial Judge concluded that the accused/respondent failed to discharge his burden under Section 139 of the Negotiable Instruments Act. 7. However, the learned trial Court considered certain evidences irrelevant for the purpose of deciding whether offence under Section 138 of the Negotiable Instruments Act is made out or not. Learned trial court took into notice deposition of PW.1 that there was a written agreement between the parties in respect of loan advanced and the cheque was issued for principal as well as interest of the loan amount. The said documents were not produced before the Court inspite of undertaking by the appellant. Hence, adverse inference would be drawn. Learned trial Court further noticed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 10. The provisions of Section 138 and 139 of the Negotiable Instruments Act are being reproduced below:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble Supreme Court decided the requirement to prove the offence under Section 138 of the Negotiable Instrument Act as follows:- "26. In Gimpex Private Limited vs. Manoj Goel, this Court has unpacked the ingredients forming the basis of the offence under Section 138 of the NI Act in the following structure: (i) The drawing of a cheque by person on do account maintained by him with the banker for the payment of any amount of money to another from that account; (ii) The cheque being drawn for the discharge in whole or in part of any debt or other liability; (iii) Presentation of the cheque to the bank arranged to be paid from that account, (iv) The return of the cheque by the drawee bank as unpaid either because the amount of mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also to be proved that cheque was issued in discharge of a debt or liability (Ingredient no. (ii) in Gimpex's case). The burden of proving this fact, like the other facts, would have ordinarily fallen upon the complainant. However, through the introduction of a presumptive device in Section 139 of the NI Act, the Parliament has sought to overcome the general norm as stated in Section 102 of the Evidence Act and has, thereby fixed the onus of proving the same on the accused. Section 139, in that sense, is an example of a reverse onus clause and requires the accused to prove the non-existence of the presumed fact, i.e., that cheque was not issued in discharge of a debt/liability." Further, in paras 35, 36, 37 and 38, the Court observed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mukesh Kumar11]. Therefore, mere admission of the drawer's signature, without admitting the execution of (2019) 4 SCC 197 the entire contents in the cheque, is now sufficient to trigger the presumption. 38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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