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TMI Blog2024 (11) TMI 605X X X X Extracts X X X X X X X X Extracts X X X X ..... cheques were in fact advanced to one Vinod Tiwari as blank signed security cheques since the petitioner had taken a loan for a sum of Rs. 1,00,000/- from Vinod Tiwari. It has further been contended that the petitioner did not know the respondent, and the respondent had misused the subject cheques. It is the petitioner s case that no liability was owed towards the respondent. On a perusal of the impugned order, it is seen that the petitioner had merely stated that he had not taken any loan from the respondent, and that the cheques were given as security to Vinod Kumar. Petitioner not only failed to lead any evidence to substantiate his claims but he also did not cross-examine the respondent to raise a probable defence. The petitioner did not adduce any material to suggest that there was no loan transaction between the petitioner and the respondent, or even summon any person to show that the loan existed between the petitioner and one Vinod Tiwari. Merely reiterating the contentions, and making bald assertions do not suffice to dislodge the presumptions raised against the petitioner. In the instant case, upon a consideration of the totality of circumstances, it is evident that the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the petitioner for an offence under Section 138 of the NI Act. The learned MM observed that the petitioner admitted his signatures on the cheques in question, not only in the notice under Section 251 of the CrPC but also in his statement under Section 313 of the CrPC and in defence evidence. Consequently, there arose a rebuttable presumption in favour of the respondent. It was observed that the petitioner could have rebutted the presumptions by leading direct evidence or from the case set out by the respondent in the averments made in the complaint, statutory notice and evidence adduced by the respondent during the trial. 6. It was noted that the principal defence taken by the petitioner in his statement under Section 313 of the CrPC, and his examination in chief, was that he did not know the respondent and had no transactions with him. It was contended that the petitioner had advanced the cheques in question to one Vinod Tiwari as blank signed security cheques. It was the petitioner s case that he had in fact taken a loan for a sum of Rs. 1,00,000/- from Vinod Tiwari, and had also given a blank signed paper to Vinod Tiwari. It was also the petitioner s case that he repaid Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,00,000/- from Vinod Tiwari. It was noted that the petitioner failed to explain or lead any evidence to indicate why the petitioner did not ask his bank to stop payment if the cheques were not returned to the petitioner even after the petitioner, as claimed by him, had repaid a substantial amount of the loan to Vinod Tiwari. Consequently, the learned ASJ dismissed the appeal against the order of conviction, and order on sentence passed by the learned MM. 10. Aggrieved by the impugned order, the petitioner filed the present petition. 11. The learned counsel for the petitioner submitted that the learned ASJ erred in upholding the order of conviction, and order on sentence passed by the learned MM thereby convicting the petitioner under Section 138 of the NI Act. He submitted that the learned ASJ did not appreciate the fact that the respondent was not known to the petitioner, and the petitioner had in fact given the subject cheques to Vinod Tiwari. He submitted that the petitioner did not receive any legal notice. He submitted that the petitioner and respondent were not known to each other, and that the respondent misused the subject cheques. 12. Per contra, the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cheques since the petitioner had taken a loan for a sum of Rs. 1,00,000/- from Vinod Tiwari. It has further been contended that the petitioner did not know the respondent, and the respondent had misused the subject cheques. It is the petitioner s case that no liability was owed towards the respondent. 16. It is seen that no police complaint of the subject cheques being misused by Vinod Tiwari or the respondent was made by the petitioner. 17. At the outset, it is relevant to note that the signature of the petitioner on the subject cheques have not been denied. It is trite law that once the execution of the cheque is admitted, the presumption under Section 118 of the NI Act that the cheque in question was drawn for consideration and the presumption under Section 139 of the NI Act that the holder of the cheque/ respondent received the cheque in discharge of a legally enforceable debt or liability are raised against the accused [ Ref. Rangappa v. Sri Mohan : (2010) 11 SCC 441]. 18. The Hon ble Apex Court in Rajesh Jain v. Ajay Singh : (2023) 10 SCC 148 , while discussing the appropriate approach in dealing with presumption under Section 139 of the NI Act, observed the following: 54. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant in order to support his allegation of having extended loan to the accused, when it ought to have instead concerned itself with the case set up by the accused and whether he had discharged his evidential burden by proving that there existed no debt/liability at the time of issuance of cheque. (emphasis supplied) 19. On a perusal of the order on conviction dated 07.03.2020, and the impugned order, it is seen that the arguments of the petitioner have been extensively dealt with by the learned MM and the learned ASJ. Once the signatures on the subject cheque had been admitted, the presumption under Sections 118 and 139 of the NI Act operated in the favour of the respondent, and against the petitioner. As was rightly noted by the learned ASJ, the onus was on the petitioner to rebut the presumptions raised against him under Sections 118 and 139 of the NI Act. 20. In the present case, the petitioner did not deny his signatures on the subject cheques. It is seen that the petitioner sought to controvert the presumptions raised against him by raising a defence that he did not know the respondent, and had not taken any loan from the respondent. It is the petitioner s case that he ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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