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TMI Blog2024 (10) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... of the debt or liability. It is also well settled that in complaints under Section 138 of Negotiable Instruments Act, the Court must presume that the cheque had been issued for a debt or liability, however, this presumption is repeatable. The burden of proof that cheque has not been issued for a debt or liability is on the accused. The petitioner/accused has failed to prove that cheque was not signed by him, in these circumstances, it is to be presumed that the cheque had been made for consideration and the holder of the cheque received the cheque for discharge in whole or in part of debt or liability. Mere on the ground that the earlier Manger has been transferred and the witness who has been examined by respondent-Bank did not have person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has been convicted under Section 138 of Negotiable Instruments Act and has been sentenced to undergo six months R.I. as well as to pay compensation of Rs.12,71,874/- to the respondent with default stipulations. 2.The facts in brief to decide the present revision are that the complaint u/S.138 of Negotiable Instruments Act has been filed by the respondent stating therein that the respondent/complainant-UCO Bank, Branch Shuklahari, District Gwalior is a banking institution under the Banking Company Execution and Transfer of Undertaking Act, 1970 whose head office is situated at Bourbon Road Sarani, Calcutta and the branch thereof is situated at Shuklahari, Tehsil Dabra, District Gwalior (M.P.). Petitioner/accused Chhavi ram Sharma had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by 'Registered AD' which was received by the accused on 17.05.2019 and when the accused did not pay the cheque amount within 15 days, the complaint was filed on 12.06.2019. 4.The learned trial Court framed the charges against the petitioner which was denied by him. To bring home the charges, prosecution has examined Branch Manager Indrapuri Goswami. The defense of accused is of false implication and the same defense has been put forth by him. The learned trial Court after hearing learned counsel for the rival parties and after appreciating the evidence available on record vide judgment dated 28.06.2023 passed in SC NIA No.154/2019 convicted the petitioner for the offence punishable under Sections 138 of Negotiable Instruments Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the courts below based on evidence adduced by Bank, rightly convicted the petitioner u/S.138 of N.I. Act, 1881. It is further argued that the oral and documentary evidence of Bank remain uncontradicted and petitioner failed to adduce any cogent evidence to prove his defense. The respondent - Bank has proved its case beyond reasonable doubt, therefore, there is no reason for setting aside the impugned judgments passed by courts below. 7.Heard learned counsel for the rival parties and perused the material available on record. 8.The Respondent-Bank has examined Indrapuri Goswami, Service Branch Manager UCO Bank, Tehsil Dabra, District Gwalior (M.P.) in support of the facts narrated in the complaint. This witness has corroborated the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiable instrument were made in the order in which they appear then on. (f)as to stamp : that a lost promissory note, bill of exchange or cheque was duly stamped. (g)that holder is a holder in due course : that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or acceptor thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him. 10.It is a trite law under Section 139 of the Negotiable Instruments Act that the Court must presume unless the contrary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary is proved, learned courts below have rightly presumed that the cheque Exh. P/10 had been issued for the debt or liability. Learned counsel for the petitioner argued that courts below have wrongly held that notice of demand was received by the petitioner/accused based on acknowledgment Exh. P/12, however, the above argument is not acceptable in the light of the fact that the receipt of notice has not been challenged during cross-examination of respondent witness. 13.It is well settled that while exercising the revisional jurisdiction, findings of fact recorded by lower court should only be intervened when the same is perverse. The revisional court should not appreciate or re-appreciate the evidence. In this case, there is concurrent find ..... X X X X Extracts X X X X X X X X Extracts X X X X
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