TaxTMI 
TaxTMI 
2022 (2) TMI 725
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....g upon him to pay the amount within 15 days. The notice was served upon him on 03.02.2005 and the 1st respondent sent reply raising untenable contentions. The complaint was submitted in the above circumstances. 3. In support of the averments in the complaint, the appellant got himself examined as PW1 and Exts.P1 to P6 were marked. After completion of prosecution evidence, the 1st respondent was examined under Section 313 of Cr.P.C. and the incriminating materials brought out during the trial were put to him. He denied the said materials and contended that the 1st respondent never had any transaction with the appellant herein and he denied the execution of the said cheque in favour of the appellant. It is stated by him that he was a subscriber of chitty conducted by One Joy Orathel under the name and style of "Athira Finance" wherein he was a subscriber of a chitty for an amount of Rs. 90,000/-. The aforesaid chitty was bid by the 1 st respondent in auction in the year 1997 and at the time of release of the said amount, the said Joy Orathel collected three signed blank cheques and a signed blank stamp paper worth Rs. 50,000/- from the 1 st respondent. Later, he paid the said amou....
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....- II, Thamarassery and a case was registered against the respondent as C.C. No.483/2001 for the offence under Section 138 of Negotiable Instruments Act. Similarly, by mis-utilizing the cheque bearing No.06362 another relative of the said Joy, Sri.Augustin Joseph filed another criminal complaint before the Judicial First Class Magistrate Court - II, Hosdurg as C.C. No.136/2002. Now the present complaint is filed by the appellant herein misusing the 3 rd cheque which was handed over to the said Joy. The above aspects are clearly mentioned in the reply notice sent by the respondent to the statutory notice issued by the appellant. Ext.D5 is the said reply notice, which is marked through DW1, who is the 1st respondent himself. 8. On going through the materials available, it can be seen that, the specific case of the appellant is that, an amount of Rs. 3 lakhs was borrowed by the 1st respondent from him, on 02.01.2005. It is also his case that when the aforesaid amount was demanded back the 1 st respondent issued a cheque on 28.01.2005. Thus the specific case of the appellant is that the cheque in question which is bearing No.06361 was issued to the appellant by the 1 st respondent on....
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....t of the same. In that complaint also the case as mentioned above is specifically raised by the 1st respondent. 9. The main contention raised of the learned counsel of the appellant is by placing reliance upon the presumption contemplated under Section 118(a) and 139 of Negotiable Instruments Act. It is true that the aforesaid Section 118(a) provides that unless contrary is proved it is to be presumed that a negotiable instrument has been made or drawn for consideration. Similarly, Section 139 provides that unless contrary is proved, the holder of the cheque received the cheque for discharge in whole or in part of debt or liability. However, the fact is that the presumptions contemplated under the aforesaid provisions are rebuttable. In order to rebut the presumption, the accused has to put forward a probable case and it is not at all necessary that it should be a case beyond reasonable doubt. It is a well settled position of law that the presumption can be treated as rebutted when the accused advances a probable case with evidence and the consideration for the same is not strict proof but only 'preponderance of probabilities'. In this case, the evidence of DW1 coupled w....
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....ned Magistrate, the appellant is residing about 140 kilometers away from the residence of the 1 st respondent and the 1st respondent is denying any acquaintance with the appellant as well. Despite the same, no attempt has been made by the appellant to prove the transaction by adducing any evidence. In such circumstances, the conclusion arrived at by the learned Magistrate to the effect that the appellant failed to prove execution of the cheque is a sustainable view. 11. The learned counsel for the appellant contended that, since the 1st respondent has admitted the signature, the presumption has to be drawn in his favour. It is true that the 1 st respondent has admitted the signature, but he never admitted that the said cheque was issued and handed over to the appellant herein. On the other hand, he has raised specific case that this cheque was handed over to one Joy Orathel in the year 1997 and the same was misused by the appellant, in connivance with the said Joy. In the light of the specific and consistent case amply proved by the 1st respondent through his deposition as DW1 and also with the help of Exts.D1 to D8, I do not find any scope for any interference. 12. In this r....