2018 (11) TMI 1936

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....0- 2005 the respondent/accused borrowed a sum of Rs.2,50,000/- from him for the purpose of extension of business and for returning the said amount he had drawn a cheque bearing No. 708057 dated 28-10-2005 in favour of the appellant. The said cheque was presented before the Bank for clearance, but the same was dishonoured on 29-10- 2005 with endorsement of exceeds arrangement. On 7-11- 2005 the respondent was served with legal notice but he failed to repay the amount of cheque that is why complaint under Section 138 of the Act, 1881 was filed against the respondent before the trial Court which resulted into acquittal. 3. Learned counsel for the appellant would submit as under: i) Issuance of cheque by the respondent is not in dispute and ....

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....d in favour of the appellant but even after returning the entire amount of Rs.4,00,000/- one cheque issued by the respondent is misused by the complainant for filing the instant complaint case. He would further submit that the finding of the trial Court is based on proper marshaling of the evidence and the same is not liable to be interfered while invoking the jurisdiction of the appeal. 5. I have heard learned counsel for the parties and perused record of the court below in which impugned judgment is passed. 6. Section 118 of the Act, 1881 reads as under :118 Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made:- (a) of consideration -that every negotiable instrument was ma....

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....ing thereon the official mark denoting that the cheque has been dishonoured, presume the fact of dishonour of such cheque, unless and until such fact is disproved. As the bank's slip is not disproved by the respondent, it is clearly established that cheque is dishonoured for insufficient fund. The cheque was issued by the Bank of Baroda in the present case and it was submitted before the same Bank. The purpose of enactment of the Act, 1881 is to maintain confidence of Bank transactions. 10. Looking to the evidence of both sides, it is clearly established that the cheque was issued to clear the liability of the year 2005 and therefore, argument advanced on behalf of the respondent regarding no transaction took place between the parties ....