2021 (12) TMI 667

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....he offence punishable under Section 138 of the Negotiable Instruments Act (for short 'the NI Act'). It was alleged that the accused borrowed a sum of Rs. 1,00,000/- form the complainant on 22.7.200(sic) and issued Ext. P1 cheque on 23.8.2000 towards the discharge of the said liability, that the cheque on presentation was dishonoured for want of sufficient funds, that Ext. P4 statutory notice demanding payment was not heeded to, and, therefore, the accused committed offence under Section 138 of the NI Act. 4. The complainant himself gave evidence as PW1. A witness was examined as PW2. Exts. P1 to P9 were marked on the side of the complainant. The accused himself gave evidence as DW3. Two independent witnesses were examined as DW1 an....

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....esumption that the holder of the cheque receiving the same of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. The presumption under Section 139 is rebuttable in nature. If the basis for drawing the presumption under Section 139 of the Act exists, the Court shall draw presumption under the said Section, in which case, evidential burden will be on the accused to prove that there was no debt or liability. Whether the presumption is rebutted or not, would depend upon the facts and circumstances of each case. of course, the execution and issuance of cheque have to be proved by the complainant to draw presumption under Section 139 of the Act. 10. The definite case of the defence is t....

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....ere was no compliance of the order passed by the court below in C.M.P. No. 691/2005, the court below closed further proceedings in the said petition holding that adverse inference could be drawn at the time of hearing. Even though the accused challenged the order in C.M.P. No. 691/2005 before this Court in Crl. M.C. No. 2813/2005, he could not succeed in it. This Court passed an order dated 6.9.2005 directing the learned Magistrate to send the documents in question for opinion of the expert. By that time, C.M.P. No. 691/2005 was already closed. That apart, even after the order of this Court, the complainant did not produce his admitted hand writing at the court. Therefore, the complainant now cannot contend that he should be given an opport....