2019 (3) TMI 1412

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....e respondent was doing the business of fast food and milk made items, whereas the appellant was supplying milk to him for the aforesaid purpose. After settlement and reconciliation of accounts, the respondent issued cheque No.275900 dated 31.8.2011 amounting to Rs. 2,20,000/-payable at Kangra Co-operative Bank Ltd. Branch Office, Katrain. However, the same was dishonoured due to "insufficient funds" in the account of the respondent. Thereafter, the appellant issued a statutory legal notice to the respondent on 13.10.2011, which was duly replied by the respondent wherein it was alleged that cheque book of the respondent from serial Nos. 275893 to 275900 was misplaced. 3. After recording the preliminary evidence, the respondent was summone....

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....llowing presumptions shall be made:- (a) of consideration- that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration; (b) as to date - that every negotiable instrument bearing a date was made or drawn on such date; (c) as to time of acceptance - that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer - that every transfer of a negotiable instrument was made before its maturity; (e) as to order of endorsements - that the endorsements appear....

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.... 54 may not be correct. However, this does not in any way cast doubt on the correctness of the decision in that case since it was based on the specific facts and circumstances therein. As noted in the citations, this is of course in the nature of a rebuttable presumption and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. However, there can be no doubt that there is an initial presumption which favours the complainant. 27. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a....

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....iced that the specific case of the appellant is that he had supplied milk to the respondent and it was in lieu thereof that the respondent had issued cheque Ext. CB to him. However, in the entire complaint or earlier thereto in the notice issued under section 138 of the Act, the appellant has failed to mention the rate of milk, payment if any due and place on record the alleged settlement. In absence of such details, it would not be proper for the Court to expect the respondent to answer such vague claim. Nonetheless, the respondent has led sufficient evidence to prove that his cheque book containing signed and unsigned cheque was lost. On 30.8.2010 the respondent in fact had not only lodged complaint to his banker Ext. D-1 but had also lod....