TaxTMI 
TaxTMI 
2019 (6) TMI 1740
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....rt). 2. It is the case of the appellant/complainant (hereinafter referred to as 'complainant') that the respondent/accused (hereinafter referred to as the 'accused') borrowed a sum of Rs. 1,25,000/- on 20.3.2006 and issued a cheque drawn on Kollam District Co-operative Bank, Oyoor Branch in the name of the complainant towards repayment of the loan. The complainant presented the said cheque for encashment through Federal Bank, Oyoor Branch. But the cheque was returned unpaid with the endorsement 'funds insufficient'. On 18.5.2006, the complainant issued a legal notice to the accused through his Advocate calling upon the accused to pay the cheque amount. The said notice, sent by registered post duly served on the ac....
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....e amount was paid back. According to him, he had no account with the Kollam District Co-operative Bank and it was the father of the complainant who introduced him in the said Bank for the purpose of opening an account there. In support of his contentions, he produced his pass book and got it marked as Ext.D1. Copy of account opening form, copy of ledger folio, and copy of cheque book issue register were marked as Exts.D2 to D4 respectively. 5. On appreciation of evidence, the learned Magistrate held that execution of the cheque was admitted by the accused and that it was proved by the complainant that the cheque was dishonoured on account of "insufficient funds". However, the learned Magistrate concluded that the cheques were not issued ....
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.... certain presumptions to be raised laying down some special rules of evidence relating to presumptions. The presumption, therefore, is a matter of principle to infuse credibility to negotiable instruments including cheques and to encourage and promote the use of negotiable instruments in financial transactions. Section 118 of the Act provides presumptions to be raised until the contrary is proved, i) as to consideration, ii) as to date of instrument, iii) as to time of acceptance iv) as to time of transfer v) as to order of indorsements, vi) as to appropriate stamp and vii) as to holder being a holder in due course. That apart, Section 139 of the Act provides that it shall be presumed, unless the contrary is proved, that the holder of a che....
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....lainant who introduced him in the Bank is not a probable defence to shift the burden to the complainant. The fact that an amount of Rs. 10,000/- was borrowed by the accused from the father of the complainant and it was returned is also not a probable defence. The defence evidence would indicate that the accused handed over cheque to the complainant. According to him, even after the payment of Rs. 10,000/- the cheque was not returned. Having regard to the materials on record, this Court is of the view that the accused failed to adduce evidence to rebut the presumption or a probable case to shift the burden to the complainant. 8. It is well settled law that an appeal against acquittal seeking to set aside the judgment of the trial court, t....
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....unfilled signed cheque had been stolen. The existence of a fiduciary relationship between the payee of a cheque and its drawer, would not disentitle the payee to the benefit of the presumption under Section 139 of the Negotiable Instruments Act, in the absence of evidence of exercise of undue influence or coercion. The second question is also answered in the negative. 40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt." 9. In view of the above, the trial court patently erred in holding that th....