TaxTMI 
TaxTMI 
2025 (6) TMI 751
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....d the learned counsel appearing for the 1st respondent, in detail. Perused the verdict under challenge and the records of the trial court. 3. Parties in this appeal shall be referred as 'complainant' and 'accused' hereafter. 4. The case of the complainant is that, the accused borrowed Rs.3 Lakh from him on 19.08.2008 and promised to repay the same on 19.09.2008. Accordingly, the accused issued cheque for the said sum dated 19.09.2008 drawn on State Bank of Travancore, Kulathuppuzha Branch. When the cheque was presented for collection, the same got dishonored for want of funds. Although, legal notice was issued to the accused intimating dishonor and demanding payment of the cheque amount, she failed to pay the amount. 5. The trial court took cognizance for the offence punishable under Section 138 of the NI Act and proceeded with trial. PW1 was examined and Exts.P1 to P7 were marked on the side of the complainant. After examination of the accused under Section 313(1)(b) of Cr.P.C, DW1 was examined on the side of the accused. 6. On appreciation of evidence, the trial court found that the accused committed the offence punishable under Section 138 of the NI Act. Accordingly,....
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.... 139 of Act and in absence of any cogent evidence to show that cheque was not issued in discharge of debt, presumption would hold good - Forensic opinion was wholly unnecessary in instant case Application filed by accused before Trial Court was wholly frivolous and Trial Court had rightly rejected application - High Court ought not to have allowed revision application - Impugned order set aside. 9. In K. Ramesh's case (supra) the Apex court referred the decision reported in [(2019) 4 SCC 197] Bir Singh v. Mukesh Kumar, with reference to paragraph Nos.32, 33, 34 and 36. The same read as under: "32. 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. 33. 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 mak....
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....ssuance of Ext.P1 cheque for the transaction of Rs.3 Lakh was not proved by the complainant? 2. Whether the first Appellate Court wrongly set aside the judgment of conviction and sentence imposed by the trial court? 3. Whether the verdict impugned would require interference? 4. Orders to be passed? 12. The law is well settled that, an initial burden is cast upon the complainant to prove the transaction led to execution of the cheque, so as to canvas benefit of presumptions under Sections 118 and 139 of the NI Act. 13. In the instant case, the trial court found on evidence that the complainant proved the transaction and execution of the cheque and the presumptions in favour of the complainant was not rebutted by the accused. Therefore, the accused was convicted and sentenced by the trial court. But, the first Appellate Court, on reappreciation of evidence, found otherwise. It was observed by the first Appellate Court, relying on the evidence of DW1 during cross-examination that, the complainant had no explanation as to who filled up Ext.P1 cheque, since he admitted in cross-examination that he did not know who filled up the cheque. Further, he depose....
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....tated that the sale was four years ago and his date of examination was on 01.12.2011. DW1 also deposed during examination that, he purchased 55 cents and 88 cents of property from PW1 and sold 88 cents of property for Rs.10.5 Lakh thereafter. But, regarding the details of the agreement for sale and the date of said agreement, he did not have much memory. 15. The trial court given emphasis to the evidence of PW1 regarding the source as spoken by him, which is supported by the evidence of DW1. It is true that the documents pertaining to property sale were not produced by either side. But, on perusal of Ext.P7 statement of account in the name of the complainant, the same would show that, there was deposit of Rs.9,50,000/- (Rs.6,50,000/- + Rs.3,00,000/-) as on 11.07.2007 in the account of the complainant, though on 08.07.2008, the balance was only Rs.4,476/-. Thus, from Ext.P7, it could be seen that there was deposit of Rs.9,50,000/- (Rs.6,50,000/- + Rs.3,00,000/-) in the account of the complainant and the same was periodically withdrawn. Here, the case of the complainant initially is that, he had given Rs.3 Lakh to the accused and the money was obtained by him by selling his proper....