TaxTMI 
TaxTMI 
2024 (9) TMI 1238
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....resented to the bank and the bank returned it due to "insufficient funds" on 29.05.2009 (Ex.2). Thereafter, legal notice was sent to the sole respondent on 24.6.2009 (Ex.3). A copy of the registered receipts etc. are (Ex.5, Ex.6 and Ex.7). On failure of the sole respondent to pay back the cheque amount, the complaint was filed on 16.7.2009. The complainant examined himself as PW.1 and proved the aforesaid fact through his oral evidence as well as through the documents referred above. 4. The defence of the respondent was/is that appellant was working with him and blank signed cheques were there in office, which was misused by the appellant. This defence is disclosed in the statement under Section 313 Cr.P.C. 5. No evidence has been brought on behalf of the respondent to discharge his burden under Section 139 of the Negotiable Instruments Act. 6. The learned trial Judge took out following points for consideration; whether the sole respondent had issued cheque no. 626216, dated 12.5.2009 of Rs.4,39,000/- against payment of any legal liability. The learned trial Judge concluded that the cheque was of the bank account of the accused/respondent and his signature was there on the....
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....ce the complainant did not produce documents regarding his lands to establish that he had income to such extent to make him capable to pay in cash, such a huge amount. The learned trial Judge has rightly held that it is complainant's case that an agreement of loan was there between the parties but the said document was not produced before the Court. Learned counsel for the complainant has relied upon the judgment of Hon'ble Supreme Court in Vijay Vs. Laxman & Anr. reported in 2013 Cr.L.R. (SC) 277. 10. The provisions of Section 138 and 139 of the Negotiable Instruments Act are being reproduced below:- "138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be ....
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....edit of that account is insufficient to honour the cheque or that it exceeds the amount (v) A notice by the payee or the holder in due course making a demand for the payment of the amount to the drawer of the cheque within 30 days of the receipt of information from the bank in regard to the return of the cheque; and (vi) The drawer of the cheque failing to make payment of the amount of money to the payee or the holder in due course within 15 days of the receipt of the notice." Hon'ble Supreme Court has further held in Para-27 & 28 as follows:- 27. In K. Bhaskaran v. Sankaran Vaidhyan Balan this Court had summarised the constituent elements of the offence in fairly similar terms by holding: "14. The offence Under Section 138 of the Act can be completed only with the concatenation of a number of acts. The following are the acts which are components of the said offence: (1) drawing of the cheque, (2) presentation of the cheque to the bank, (3) returning the cheque unpaid by the drawee bank, (4) giving notice in writing to the drawer of the cheque demanding payment of the cheque amount, (3) failure of the drawer to make payment within 15 days of t....
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....presumption takes effect even in a situation where the accused contends that 'a blank cheque leaf was voluntarily signed and handed over by him to the complainant. [Bir Singh v. Mukesh Kumar11]. Therefore, mere admission of the drawer's signature, without admitting the execution of (2019) 4 SCC 197 the entire contents in the cheque, is now sufficient to trigger the presumption. 38. As soon as the complainant discharges the burden to prove that the instrument, say a cheque, was issued by the accused for discharge of debt, the presumptive device under Section 139 of the Act helps shifting the burden on the accused. The effect of the presumption, in that sense, is to transfer the evidential burden on the accused of proving that the cheque was not received by the Bank towards the discharge of any liability. Until this evidential burden is discharged by the accused, the presumed fact will have to be taken to be true, without expecting the complainant to do anything further." Evidently, in the case on hand, the prosecution discharged its burden to prove the requirement of Section 138 of the Negotiable Instruments Act. The sole respondent admitted that his signed chequ....