TaxTMI 
TaxTMI 
2020 (3) TMI 432
X X X X Extracts X X X X
X X X X Extracts X X X X
....warded by the learned Judicial Magistrate First Class. Raipur in Complaint Case No. 1423/2007 vide its judgment dated 30.06.2011 convicting him under Section 138 of the Negotiable Instrument Act and sentenced him to undergo SI for six months with compensation of Rs. 50,000/- within one month. 2. Brief facts of the case are that respondent No.1 filed a criminal complaint against the applicant for the offence under Section 138 of the Negotiable Instrument Act on the ground that he had given a loan of Rs. 50,000/- and in lieu of the aforesaid loan the applicant had handed over the cheque of Rs. 50,000/- dated 11.10.06 to the complainant (respondent No.1). It is alleged that when the complainant presented the cheque for encashment on 12.10.06,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o not examined the postman who went to deliver the said letter therefore it cannot be concluded that the alleged notice was served upon the applicant. Learned court below ought to have considered the said fact that since no reason has been assigned for dishonour of the cheque , the offence under Section 138 of the N.I. Act is not made out. The conclusion and findings arrived by the courts below is based on misreading of evidence and non consideration of important and vital issues. The complainant has utterly failed to prove the ofence against the applicant. 6. Learned counsel for the respondent No.1 and State supported the impugned order and submits that the same is in accordance with law and there is no infirmity in the same. 7. Heard co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nciples pertaining to burden of proof on an accused especially in a case where some statutory presumption regarding guilt of the accused has to be drawn. "Presumption u/ Section 139 of NI Act- While referring to the case of Kumar Exports vs. Sharma Carpets, the Supreme Court held that the accused may adduce evidence to rebut the presumption, but mere denial regarding existence of debt shall not serve any purpose." 10. With reference to the facts of the present case, the Court noted that the trial court as well as the Appellate Court having found that cheque contained the signature of the applicant and it was given to the complainant (respondent No.1) to present in the Bank of the presumption under Section 139 was rightly raised which was....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontrary was proved, such presumption would hold good; that the complainant had proved legally enforceable debt in the oral as also documentary evidence, including the written acknowledgment by the accused on stamp paper; and that except bare denial, nothing was brought on record by the accused to dislodge the proof adduced by the complainant. Further it has held that 14. So far the question of existence of basic ingredients for drawing of presumption under Sections 118 and 139 the NI Act is concerned, the accused-appellant could not deny his signature on the cheques in question that had been drawn in favour of the complainant on a bank account maintained by the accused for a sum of Rs. 3 lakhs each. The said cheques were presented to the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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. Thus, it has been held in the matter of Rohitbhai Jivanlal Patel (supra) that 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 strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made p....