TaxTMI 
TaxTMI 
2021 (4) TMI 34
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....d to as the Cr.P.C., challenging the correctness of the judgment acquitting the first respondent. C.C.No.524/1999 was originated before the Judicial First Class Magistrate, Thalassery, on a complaint preferred by the appellant alleging offence punishable under Section 138 of the Negotiable Instruments Act, hereinafter referred to as the Act. The appellant contended that in consideration of a loan of Rs. 1,80,000/-, borrowed on 02.04.1999, and in discharge of the liability, the first respondent issued the Ext.P1 cheque dated 10.05.1999, drawn on the Catholic Syrian Bank Ltd., Thalassery Branch. The appellant presented the cheque for encashment through the Punjab National Bank, but it was dishonoured due to insufficiency of funds. Thereafter,....
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....ng of conviction and acquitted the first respondent. Against that finding, the complainant has preferred this appeal, after obtaining leave of the Court under Section 378(4) of the Cr.P.C. 3. I heard the learned counsel on both sides. The learned counsel for the appellant argued that after having admitted the execution of the subject cheque, inconsistent stands have been taken by the first respondent. She did not even receive the notice, even though it was sent in her correct address. In cross examination of PW1, the power of attorney holder, she took the stand that the Ext. P1 was issued in consideration of Rs. 20,000/- borrowed by her from the power of attorney holder for the marriage of her daughter. But when gave evidence as DW1, she m....
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....funds. Thereafter, the first respondent was attempted to be alerted through a statutory lawyer notice, but it was not received; the notice returned unclaimed and thus the complaint was preferred. After taking evidence, the trial court entered a conviction against the first respondent, which was reversed in appeal. 6. Whatever may be the divergent stand taken by the first respondent, it is quite patent that the Ext.P1 cheque belongs to her. She had also admitted her signature on the document. According to her, it was issued in a signed blank form, without incorporating other writings, namely the name of the drawee, the amount etc. Thus she wanted to make the court believe that the cheque was issued in such a manner, in consideration of a lo....
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....at 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 issued in discharge of a debt. It is a judgment rendered by two hon'ble judges of the Supreme Court. In the decision reported in Kalamani Tex and Another v. Balasubramanian P. [ILR 2021 (1) Kerala 855], the above decision has been reiterated by the Hon'ble Supreme Court. According to the apex court, even if we take such an argument that a blank cheque was given, yet the statutory presumption cannot be obliterated. 8. Now, as noticed earlier, the first respondent has no dispute....
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....ue for Rs. 20,000/-. The first respondent is the sister-in-law of PW1, power of attorney holder. The case of PW1 is that the appellant had lent the amount to the first respondent on his assurance. Whatever it may be, once the signature in Ext.P1 stands admitted, it is for her to rebut the presumptions; that has not been attempted. 10. Moreover, a plea of discharge raised by the first respondent also remains on the papers. She had said that the sum of Rs. 20,000/-, borrowed by her was already repaid and still the cheque was not returned. It is trite that the burden of proving a plea of discharge is on the person who raises the contention. Particulars of such repayment are lacking. It also does not stand the reason that, in spite of repaying....