TaxTMI 
TaxTMI 
2022 (4) TMI 1149
X X X X Extracts X X X X
X X X X Extracts X X X X
.... friendly loan was given by the complainant to the petitioner and even the date of the said loan has not been mentioned. It is further submitted that a blank cheque was given as a security to the complainant by the petitioner and the dispute had arisen between the petitioner and the complainant as the complainant had told the petitioner to sell the vehicle loaded with chicks without the knowledge of the company and the petitioner had refused to do the same and thereafter, the complainant did not allow the vehicle of the petitioner to leave the poultry farm unless the petitioner paid him Rs. 54,000/-. It is argued that when the petitioner had paid an amount of Rs. 54,000/- to the complainant then the petitioner also gave the cheque in question as a security to the complainant. It is also argued that the complainant had returned Rs. 4000/- to the petitioner. It is contended that the said security cheque has been misused by the complainant. This Court has heard the learned counsel for the petitioner and has perused the paper book. Both the Courts below had concurrently found that an amount of Rs. 1,00,000/- was advanced by the complainant to the petitioner as a friendly loan and the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mani Tex and another Vs. P. Balasubramanian reported as (2021) 2 Scale 434, in which it was held that once the signatures on the cheque are admitted, the Courts are required to presume that the cheque is issued for consideration and for the discharge of a legally enforceable debt. In para 26 of the judgment dated 05.04.2022, the Appellate Court had observed that CW1 had specifically stated that the cheque Ex.P1 was handed over to him by the accused in a duly filled form at his residence on 18.04.2016 and the petitioner while deposing as DW3 in his crossexamination had categorically admitted that cheque Ex.P1 was filled by him and it bears his signatures. With respect to the pleas in defence, which are sought to be taken by the petitioner, it was observed that no evidence was produced on record so as to even remotely rebut the presumption in favour of the holder of the cheque (i.e. complainant). The said observations made by the Courts have not even been contradicted by the learned counsel for the petitioner before this Court. The plea of defence sought to be raised is absolutely baseless as there is no material much less, prima facie material to substantiate the same. The findings ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non- existence of the presumed fact as held in Hiten P. Dalal (supra). xxx xxx xxx 36. The proposition of law which emerges from the judgments referred to above is that the onus to rebut the presumption under Section 139 that the cheque has been issued in discharge of a debt or liability is on the accused and the fact that the cheque might be post dated does not absolve the drawer of a cheque of the penal consequences of Section 138 of the Negotiable Instruments Act. 37. A meaningful reading of the provisions of the Negotiable Instruments Act including, in particular, Sections 20, 87 and 139, makes it amply clear that a person who signs a cheque and makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque is otherwise valid, the penal provisions of Section 138 wo....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... been observed that even if a cheque is a security cheque, the same is an integral part of the commercial process and the same acts as a deterrent for the drawer against dishonouring his financial commitment and can also be used towards discharging the liability of the drawer. It had been further held that to state otherwise, would defeat the whole purpose of a security cheque. No judgment has been cited by the learned counsel for the petitioner to show any contrary view. The Hon'ble Supreme Court in Rohitbhai Jivanlal Patel's case (Supra), has held as under:- "xxx xxx 17. In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the Trial Court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the Trial Court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and c....