2019 (1) TMI 1495

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....ring No.098100 dated 24.8.2001 for the amount of Rs. 50,000/­. The complainant had presented the said cheque in his bank on 9.11.2001 and the complainant received an intimation from his bank on 12.11.2001 that the said cheque has been dishonoured for insufficiency of funds. The complainant has accordingly brought this fact to the notice of the applicant/accused, and the applicant/accused assured to make the arrangement of funds and accordingly the complainant has presented the said cheque again on 22.12.2001. Said cheque was even dishonoured on the second time for insufficient funds. Lastly, the complainant issued a legal notice dated 31.12.2001 to the applicant/accused for repayment of the amount and though notice was served on accused on 10.01.2002, the same was neither replied nor complied with by the accused. Therefore, the complaint came to be filed. b] The learned Judicial Magistrate First Class, Aurangabad has recorded the plea of the applicant/accused. The applicant/accused pleaded not guilty and claimed to be tried. The complainant has examined himself. Statement of the accused u/s 313 of Cr.P.C. came to be recorded. According to the defence of the accused he has not ....

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....paper to the complainant. The complainant has also admitted in his cross-examination that on 25.8.2001, a DD of Rs. 50,000/was given to him by the company under the signature of Managing Director. Learned counsel submits that the presumption under section 118 read with section 139 of the Negotiable Instruments Act is rebuttable. The accused can rebut the said presumption on preponderance of probabilities and the same can be done on the basis of the cross­-examination of the complainant and his witnesses, if any, and/or by leading independent defence evidence. The accused can very well do so that no such presumption can either be raised or would stand rebutted in as much as the basic requirement of the cheque having been issued in discharge of a legally enforceable debt or liability is not satisfied. 4. The learned counsel for the applicant, in order to substantiate his submissions, placed reliance on a judgment in the case of Domina De Souza Vs. Kamalkant Sawant reported in 2018 (6) Mh.L.J. 521 wherein this Court (Coram : C.V.Bhadang, J.) in paragraph no.11 by referring the observations of the Supreme Court in case of Indus Airways Pvt Ltd., observed about the same in paragrap....

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....he payments. He has further shown his ignorance that at that time, Managing Director of the Company was on leave or out of Aurangabad, however, the complainant further admitted that on 20.8.2001 accused met him in the company and the complainant had asked him about the payment. Though, the complainant has further denied that, accused has given the disputed cheque in discharge of the said liability of the company, the complainant has further admitted in the cross­-examination that on 25.8.2001 DD of Rs. 50,000/­ was given to him by the company under the signature of the Managing Director. The complainant has not bothered to add on his own in the cross­-examination that said transaction was a different transaction and it has no concern with the transaction entered by him with the accused in his personal capacity. 7. In a case Domina De Souza (supra) relied upon by the learned counsel for the applicant, this Court (Coram: C.V.Bhadang, J.) in paragraph no.11 has reproduced the observations of the Supreme Court in paragraph no.13 of Indus Airways Pvt. Ltd., which is as under :­ "11. The Supreme Court in Indus Airways Pvt. Ltd. (supra) was concerned with a case where th....

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....ng the contents of the notice and the complaint on their face value, it cannot be said that the cheque was issued for the discharge of any legally enforceable debt or liability, as on the date of issuance of the cheque." 9. Thus, it is clear that explanation to Section 138 leaves no manner of doubt that to attract an offence under section 138 of the NI Act, there should be legally enforceable debt or other liability subsisting on the date of drawal of the cheque. Thus, considering the admissions given by the complainant, it cannot be said positively that the said cheque has been issued by the applicant/accused for the discharge of any legally enforceable debt or liability as on the date of issuance of the cheque. It is well settled that presumption under section 118 read with section 139 of the N.I. Act is rebuttable presumption and the accused can do so on preponderance of probability and also on the basis of the cross­-examination of the complainant and his witnesses, if any. In the instant case, the applicant/accused has discharged the said burden and rebutted the presumption drawn under section 118 read with section 139 of the Act. Thus, the evidence is short of proving th....