TaxTMI 
TaxTMI 
2018 (6) TMI 1366
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....dumudi, challenging the acquittal of the respondent herein/accused under Section 138 read with 142 of the Negotiable Instruments Act. 3.The case of the appellant is that the accused had financial transaction with the appellant and in the said transaction, he had borrowed Rs. 9 Lakhs on 10.12.2003 after executing a promissory note, and to discharge the said liability, the respondent/accused issued a cheque dated 04.08.2004 for Rs. 10,04,850/-. The appellant herein has presented the said cheque for collection on 04.08.2004, which was returned unpaid as not arranged for on 06.08.2004. The appellant caused a legal notice to the accused on 01.09.2004. Despite receipt of legal notice, the respondent herein neither sent any reply nor paid the che....
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.... Negotiable Instruments Act. 7.The learned counsel for the appellant would submit that the Learned Judicial Magistrate erred in holding that the complainant is entitled to the statutory presumption available under Section 139 of the Negotiable Instruments Act to the effect that the cheque in question was issued towards the discharge of legally enforceable debt or liability. But, the presumption available under Section 139 is a rebuttable presumption and the accused can rebut the same only by letting in evidence and establishing his defence. Consequently the Learned Magistrate ought to have held that the respondent/accused neither produced any proof for payment regarding the cheque amount due by way of receipt nor by adducing any other depe....
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....ce. After considering the oral and documentary evidences, the learned Magistrate was pleased to acquit the accused/respondent on the grounds that admission of the signature does not amount to admission of liability by order dated 21.02.2007. 10.Being aggrieved over the acquittal of the respondent herein, the complainant/appellant herein filed the above criminal appeal. 11.It is seen from the records that the issuance of cheque in Ex-P1 is admitted by the accused/Respondent. However, it is stated by the respondent herein that at the time of settlement of entire loan transaction amount, in the presence of Panchayatars, the demand to return the cheque and pronote by the accused was answered by the complainant that it was misplaced. No pruden....
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....nd the same has not been rebutted . In view of the settled principle of law, this Court is of the view that the finding regarding the issue that the accused has rebutted the presumption under Section 139 of Negotiable Instruments Act by the Learned Magistrate is not proper and the same is liable to be set aside. 13.Since this Court held that the accused has not rebutted the presumption, it is not necessary to go into the other aspects of the matter that the cheque issued by the accused for Rs. 1,50,000/- was honored by his banker. Further, it is to be noticed that the said cheque was issued prior to the issuance of the subject cheque. That apart, the Learned Magistrate held that the evidence of DW-4 is not helpful to the case of the accuse....