TaxTMI 
TaxTMI 
2020 (12) TMI 62
X X X X Extracts X X X X
X X X X Extracts X X X X
....apuram and the appellant in Crl.Appeal No. 343 of 2009 on the file of the Additional Sessions Court-I, Thiruvananthapuram. The 2nd respondent filed a complaint before the trial court alleging commission of the offence punishable under Section 138 of the NI Act against the accused. Upon consideration of the complaint, the learned magistrate is prima facie satisfied that the case is made out against the accused. Hence, the learned magistrate took cognizance of the offence under Section 138 of the NI Act of 2006. Parties are hereinafter referred to as the 'complainant' and 'accused' according to their status in the court below unless otherwise stated. 3. It is the case of the complainant that the accused borrowed a sum of Rs. 70,000/- from the complainant and issued a cheque dated 01.03.2004 for Rs. 70,000/- drawn on the account maintained by the accused with the Canara Bank, Puthenchantha Branch, Thiruvananthapuram. The complainant presented the cheque for encashment before the State of Bank of Travancore, Manacaud Branch, but, the cheque was dishonoured for the reason, 'funds insufficient'. Statutory notice was issued on 15.04.2004 to the accused calling upo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nancial transactions. Section 118 of the NI Act provides presumptions to be raised until the contrary is proved, (i) as to consideration, (ii) as to date of instrument, (iii) as to time of acceptance, (iv) as to time of transfer, (v) as to order of indorsements, (vi) as to appropriate stamp, and (vii) as to holder being a holder in due course. That apart, Section 139 of the NI Act provides that it shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for the discharge, in whole or in part, of any debt or other liability. Applying the definition of the word 'proved' in Section 3 of the Evidence Act to the provisions of Sections 118 and 139 of the NI Act, it becomes evident that in a trial under Section 138 of the NI Act, a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted. Needless to say that as and when the complainant discharges the burden to prove that the cheque was executed by the accused, ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... court can exercise the powers under Section 391 of the Code of Criminal Procedure and its jurisdiction is very wide to prevent abuse of process of law and to correct the injustice being caused to any of the parties to the case. 10.A definite case was put up by the accused in the case that the cheque in question was issued as a security for the chitty transaction of his father with the wife of the complainant and the same was evidenced by the receipts produced along with the revision petition. It is well settled that the power under Section 391 of the Cr.P.C. can be invoked whenever the court thinks it necessary, in the interest of justice, to take additional evidence in order to arrive at a just decision of the case or in a case where there would be failure of justice if the additional evidence is not taken. In the case on hand, signature in Ext.P1 is not denied by the accused. Once the signature in Ext.P1 is admitted, the burden of proof shifts to the accused to prove that it was not supported by consideration. All the statutory formalities for initiating prosecution under Section 138 of the NI Act have been complied with. In the complaint, the complainant admitted that he recei....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Singh v. Mukesh Kumar [(2019) 4 SCC 197], the Supreme Court held that in view of Section 139 of the NI Act read with Section 118 of the NI Act thereof, the Court has to presume that the cheque has been issued for discharging a debt or liability. Paragraphs 39 and 40 of the above case are relevant in this context and the same is extracted below for convenience of reference:- "39. It is not the case of the respondent- accused that he either signed the cheque or parted with it under any threat or coercion. Nor is it the case of the respondent-accused that the unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not i....