2021 (7) TMI 819

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....R No. 35/2010 against the respondent/accused alleging commission of the offence punishable under Section 138 of N.I. Act. It is contended by the complainant that during 2008-09 the accused had promised to provide gangman for cutting sugarcane and transporting the same to the sugar factory, for which a sum of Rs. 2,75,000/- was fixed as charges. The complainant paid the said amount to the accused. The accused had not provided gangman as agreed. When the complainant requested the accused to return the money, the accused had issued the cheque bearing No. 37408 dated 16.12.2009 for Rs. 2,75,000/- drawn on Janata Co-operative Bank Limited, Ugarkhurda Branch, Athani towards repayment of the amount already paid by the complainant. When the said cheque was presented for encashment, the same was dishonoured as there was insufficient fund in the account of the accused. The legal notice was issued to the accused calling upon him to repay the cheque amount. But the accused has not repaid the cheque amount. On the other hand, he issued a reply taking untenable contentions. Thereby he has committed the offence punishable under Section 138 of N.I. Act. 4. The trial Court after taking cognizance ....

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....inant had paid only Rs. 10,000/- and had obtained the cheque in question. All these suggestions were denied by the witness in toto. 11. The complainant examined one Mallappa Layannavar who filed his affidavit in lieu of examination-in-chief and deposed in support of the contention taken by the complainant regarding the agreement between the parties during 2008-09 and payment of Rs. 2,75,000/- as advance to the accused. He also spoke about issuance of the cheque by the accused and dishonour of the same. This witness had further examined as PW. 2. This witness was never cross-examined by the learned counsel for the accused. 12. Ex. P.1 is the cheque in question bearing No. 37408 dated 16.12.2009 for Rs. 2,75,000/- issued by the accused in favour of the complainant, Ex. P.2 is the endorsement issued by Janata Co-operative Bank Limited dated 25.01.2010 informing that the cheque in question is dishonoured as there was insufficient fund, Ex. P.3 is copy of the legal notice, Ex. P.4 is the postal acknowledgment for having served the legal notice on the accused and Ex. P.5 is the reply notice got issued on behalf of the accused to the complainant. 13. It is pertinent to note that in the....

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....the Full Bench of the Hon'ble Apex Court considered its earlier verdict in Krishna Janardhan Bhat v. Dattatraya G. Hegde (2008) 4 SCC 54 and categorically held that the presumption under Section 139 of the N.I. Act does indeed include the existence of the legally enforceable debt or liability. To that extent the observations made in Krishna Janardhan Bhat (supra) is held not correct. The relevant paragraphs in Rangappa (supra) are extracted below: "14. In light of these extracts, we are in agreement with the respondent-claimant that the presumption mandated by Section 139 of the Act does indeed include the existence of a legally enforceable debt or liability. To that extent, the impugned observations in Krishna Janardhan Bhat (supra) 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 in....

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....al Court was directly in the teeth of the established legal position as discussed above, and amounts to a patent error of law. 16. xxxxx 17. xxxxx 18. Even if we take the arguments raised by the appellants at face value that only a blank cheque and signed blank stamp papers were given to the respondent, yet the statutory presumption cannot be obliterated. It is useful to cite Bir Singh v. Mukesh Kumar (2019) 4 SCC 197, where this court held that: "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."" 21. Thus, the position of law is very well settled on this subject. In the present case, as the accused has categorically admitted issuance of the cheque-Ex. P.1. He took a specific defence that the cheque in question was obtained by the complainant by exercising force and that the same was a blank cheque. The complainant misused the blank cheque and filed a false complaint. Even though a specific defence is taken by the accused, he has not prob....