TaxTMI 
TaxTMI 
2021 (10) TMI 525
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.... respondent herein had in the discharge of a debt, issued cheque No.327388 dated 30.12.2000 drawn on the Catholic Syrian Bank, Koothattukulam branch for a sum of Rs. 1,70,000/- and on presentation, the said cheque was returned unpaid on the ground of insufficiency of funds in the account maintained by the 2nd respondent/accused. The complaint was filed after statutory notice and complying with all other formalities. 2. The appellant/complainant was examined as PW1 and Exts.P1 to P11 were marked. From the side of the 2nd respondent/accused, DW's 1 to 3 were examined and D1 to D7 were marked. 3. The learned Magistrate, on a consideration of the matter found that the complainant had failed to prove his case and accordingly, acquitted....
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....cheque) could not have been issued for the loan availed on 18.04.1995. He would submit that the learned Magistrate went wrong in assuming that a new loan of Rs. 1,70,000/- would not have been granted when the old loan was outstanding and that the amount of loan of Rs. 1,70,000/- would not have been given in cash when the earlier loan of Rs. 40,000/- was given by way of cheque. He submits that the learned Magistrate should have accepted the case of the complainant that the loan of Rs. 1,70,000/- was given in personal capacity. He submits that there was no warrant for the learned Magistrate to assume that the cheque was a blank cheque given as security for the earlier loan. D2 and D3 documents do not, according to the learned counsel, go agai....
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.... rebut that presumption from the side of the defence. 5. The learned counsel for the 2nd respondent/accused would rely on the judgment of this Court in Joshy P G v. Jose Varghese and Another, 2019 (4) KHC 753 to contend that where an accused in a prosecution under Section 138 of the Negotiable Instruments Act has fairly and reasonably established that the case put up by the complainant is highly improbable, the complainant cannot rely on the statutory presumption any longer. He would also refer to the Division Bench judgment of this Court in Basheer K v. C.K.Usman Koya and Another, 2021 (2) KHC 432 for the proposition that where the accused has succeeded in rebutting the presumption under the Negotiable Instruments Act, the burden shifts....
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....s the No.327388) was presented for encashment only on 23.05.1995 and the fact that the earlier loan admittedly availed by the accused from the complainant is 18.04.1995 does not, in any manner, suggest that the subject cheque was not issued as a security for the loan availed on 18.4.1995. There may have been many reasons for the earlier cheque having been presented later. Considering the totality of the evidence, I think that the case put forth by the 2nd respondent/accused cannot be disbelieved, as it is the admitted case that there was a transaction between the parties in the year 1995 as is evident from the fact that an amount of Rs. 40,000/- was credited to the account of the 2nd respondent/accused through cheques issued by the complain....
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....pellant/complainant that the second transaction with the 2nd respondent/accused was in his personal capacity was only to get over the defence of the 2nd respondent/accused that he had discharged the earlier liability and that there was no further liability subsisting to be paid off to the appellant/complainant. 9. The documents produced by the appellant/complainant (Exts.P9 Daybook, P8 DPN register and P10 & P11 Counterfoils of receipts book) were also not accepted by the learned Magistrate, as the details of the earlier loan which was admittedly paid by cheque were also not entered in Ext.P9 Daybook. 10. I think that this is a case where the 2nd respondent/accused has been successful in rebutting the statutory presumption under Secti....