2015 (9) TMI 1721

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....nt respondent was maintaining one Account No. 1417 in that Branch. The present appellant presented the cheque to the SBI, Sonamukhi Branch, for encashing it, The appellant was maintaining one Account No. 11413949856 in that branch. The said cheque was unfortunately dishonoured by the banker of the accused on the ground "exceeds arrangements". In other words, the cheque was dishonoured as the fund was insufficient as per the bank memo dated 04.04.2008. Thereafter, a notice was issued to the present respondent by Registered Post with A/D and the said A/D card and the envelop returned with the endorsement "intimation served" (on 19.04.2008) and further "not claimed and returned to sender" as per endorsement of the postal peon dated 25.04.2008. The envelope was marked as Ext. 3/2. The original notice was marked as Ext. 3/1. Postal receipt was marked as Ext. 3. The return Memos of the State Bank of India were marked as Exts. 2 and 2/1 and the cheque was marked as Ext. l. 2. The accused appellant did not make any payment and as such, the complaint was filed before the Additional Chief Judicial Magistrate, Bishnupur and Complaint Case No. 39-C of 2008 was registered. The case was conte....

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....al perspective of a case and was practically swayed by the defence claim that someone took away the blank signed cheque from his residence and the complainant presented it for encashing the same. Learned trial Court was also convinced that there was no existing liability on that score. 5. He submitted that as per the stipulation of Sections 118 and 139 of the N.I. Act, the holder of a cheque has a rebuttable presumption and that the presumption must be rebutted by plausible explanation. Learned Counsel cited a decision of the Apex Court as reported in (2010) 11 SCC 441 (Rangappa v. Sri Mohan) wherein in paragraph 26 of the Apex Court observed, 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 as reported in (2008) 2 SCC (Cri 166 at page 174 and corresponding to (2008) 4 SCC 54 nay not be correct. It further observed that, 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 and that it is open to the accused to raise a defence where ....

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....e a probable defence which creates doubt about the existence of a legally enforceable debt or liability, the prosecution can fail. 9. Mr. Sinha cited another decision of the Apex Court as reported in (2006) 3 SCC (Cri) 30 (M.S. Narayana Menon @ Mony v. State of Kerala & Anr.) wherein the Apex Court held that the accused is to only discharge initial onus of proof. He was not necessarily required to disbelieve the prosecution case. The burden of proof on the accused is not that heavy like that of the prosecution in a criminal trial. Mr. Counsel further submitted that there is a thin distinction between the presumption as contemplated under Section 139 of the N.I. Act, the presumption is only to the effect that whenever one cheque is issued the Court can presume that the said cheque was issued in discharge of existing liability but similarly there is no presumption behind the insurance of a cheque that such liability was then existing when the cheque was issued and the complainant must prove the existence of that debt or liability. 10. He submitted that it is for this Court to bank upon the evidence of D.W. 1 as to whether the explanation submitted by him was acceptable or not. ....

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....igned cheques to my else relation, or keep them on the sheet (sic). Fact that it is not possible to keep account I (sic.) all the cheques. Fact, than when I give the cheques after signing, I leave them at my house. Then, says during my absence, before going elsewhere, 1 firstly sign upon the blank cheques, and when I issue cheques to someone. I fill up the entire cheque and then put my signature. Fact that during my absence my brother has come to my house many times". 16. Unfortunately, for the present respondent, he did not take up the matter with the police or his banker after he noticed that the blank cheque signed by him was found missing. It is the natural conduct of a person who keeps a blank cheque in his house that he will keep it in safe custody but in the present case before the floor of this Court, this D.W. 1 did not mention in what type of custody he kept such cheque to plug it from being stolen. 17. It is true that the story as framed by this D.W. 1 was accepted by the learned trial Court. The appeal is practically a re-trial of a case. This Court sitting on appeal over the judgement cannot eat the story to be a convincing story to give a go-by to the claim of t....