2022 (11) TMI 1322

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....peal preferred by the appellant - Jain P. Jose, against the judgment of the trial court dated 17.03.2015, cannot be sustained. An order of remand is required. The judgment under challenge reasons that the appellant - Jain P. Jose had admitted that the entries/details in the cheque bearing No. 054984 dated 02.02.2010 for a sum of Rs.9,32,000/- (Rupees Nine Lakhs Thirty Two Thousand Only) drawn on South Malabar Gramin Bank, Olarikkara Branch, Thrissur, were not in the hand of the accused/respondent- Santosh. Hence, the presumption under Sections 118 and 139 of Negotiable Instruments Act, 1881 [For short, the N.I. Act.] does not arise. Accordingly, the High Court agreed with the reasoning given by the trial court that the appellant - Jain P. ....

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....instrument bearing a date was made or drawn on such date; (c) as to time of acceptance -that every accepted bill of exchange was accepted within a reasonable time after its date and before its maturity; (d) as to time of transfer -that every transfer of a negotiable instrument was made before its maturity; (e) as to order of indorsements -that the indorsements appearing upon a negotiable instrument were made in the order in which they appear thereon; (f) as to stamps -that a lost promissory note, bill of exchange or cheque was duly stamped; (g) that holder is a holder in due course - that the holder of a negotiable instrument is a holder in due course: Provided that, where the instrument has been obtained from its lawful owner, ....

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....k, or else how would the accused have instructed her banker to stop the payment. Thus, the story brought out by the accused is unworthy of credit, apart from being unsupported by any evidence. This decision, refers to an earlier judgment of this Court in "Rangappa vs. Sri Mohan" (2010) 11 SCC 441, which elucidating on the presumption under Section 139 of the N.I. Act, observes that this includes a presumption that there exists a legally enforceable debt or liability. However, the presumption under Section 139 of the N.I. Act is rebuttable and it is open to the accused to raise a defence wherein the existence of a legally enforceable debt or liability can be contested. A recent decision of a three Judges Bench of this Court in "Kalamani Te....