TaxTMI 
TaxTMI 
2022 (1) TMI 707
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....nia Branch which was presented by the later before the State Bank of India, Belonia Branch for collections through his account lying with the same. The complainant alleged that on 30.04.2015, the State Bank of India, Belonia Branch returned the said Cheque in favour of the complainant with a Memo stating that the same was dishonoured due to insufficient fund in the account of the accused. Owing the above, the complainant stated to have served one notice upon the accused asking him to pay the concerned amount within 15 days from the date of receipt of the same but the accused did not even bother to reply nor made any payment of the amount due. Thus, the complainant stated to have lodged the instant Case being aggrieved with the acts and omissions of the accused". 3. Being summoned, the accused-respondent (here-in-after referred to as the respondent) appeared before the learned court and contested the claim of the complainant. The learned court taking cognizance of the complaint had framed charge against the respondent. The complainant had led evidence. He was cross-examined by the respondent. In defence, the respondent also had produced three witnesses including himself. 4. Havin....
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....espondent was only out of friendly relation between them and the issuance of the said cheque bearing no. 648416 dated 04.02.2015 had no relation to their partnership business. According to Mr. Biswas, the said cheque was issued by the respondent only to repay the personal loan amount of Rs. 14 lakh which he borrowed from the complainant. Mr. Biswas, has tried to persuade this court that the presumption of a legally enforceable debt is to be drawn in favour of the holder of the cheque, as contemplated under Section 139 of the Negotiable Instruments Act. Placing reliance upon the decision of Rangappa vs. Sri Mohan, reported in (2010) 11 SCC 441, and APS Forex Services private Limited vs. Shakti International Fashion Linkers and others, reported in (2020) 12 SCC 724, learned senior counsel has argued that keeping in view the principles laid down in the aforesaid two cases, according to him, the respondent had failed to rebut the presumption to be drawn in favour of the complainant. 11. On the other hand, Ms. Purkayastha, learned counsel appearing on behalf of the respondent no. 1 has submitted that the complainant had lodged a frivolous complaint against the respondent. In addition, ....
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.... the basis of a presumption of law exists, the discretion is left with the Court to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, 'after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the 'prudent man'." (emphasis supplied) Thereafter, the Hon‟ble Supreme Court in Rangappa (supra) held thus: "28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, t....
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....e complainant and the respondent had agreed that the "post dated cheque‟ bearing no. 648413 dated 04.02.2015 for Rs. 14 lakh was issued out of the said agreement on the understanding that the cheque amount would be cleared within next one month. The complainant has also admitted the existence and execution of the said Agreement (Exbt. A-2) and also has proved his signature (Exbt. A-series) thereon. The said Deed of Agreement (Exhibit A series) was entered into by all the partners for the reason that the complainant had expressed his willingness to retire from the said partnership business. Said Rs. 14 lakh was paid to the complainant by other partners out of profit. It is the specific case of the respondent that earlier to issuance of the cheque bearing no. 468416 dated 04.02.2015, he had issued another cheque bearing no. 648413 (Exhibit-B) on the same date, but, since it was noticed that there was some over-writing in the said cheque, he had subsequently issued the cheque in question bearing no. 648416 dated 04.02.2015 and both the cheques were issued in terms of the said Agreement dated 03.01.2015. 18. From the evidence of DW-2, it comes to fore that the respondent had pai....