2026 (1) TMI 709

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.... sum of Rs. 45 lakhs on several occasions during the period between December-2013 and August-2014 for development of their hospital and agreed to repay the said amount within a short time. Since the accused failed to repay the said amount, the complainant demanded the accused to repay the amount immediately. Hence, the accused on 01.01.2015 gave a post dated cheque dated 10.06.2015 drawn on State Bank of India, Tirunelveli Branch for Rs. 45 lakhs in favour of the complainant to discharge their liability, requesting the complainant to present the cheque on 10.06.2015 or subsequently and encash the same. Believing the words of the accused, the complainant presented the cheque for collection on 10.06.2015 through State Bank of India, Tirunelveli Branch but the same was returned dishonored for the reason payment stopped by the drawer. The complainant immediately informed about the dishonor of the cheque to the accused, who in turn requested the complainant to re-present the cheque again after four weeks and they would make necessary arrangements for encashment. The complainant, believing the same, presented the cheque again for collection on 13.07.2015 through State Bank of India, Tiru....

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....hether the impugned judgment of acquittal passed in S.T.C.No.128 of 2016 dated 26.02.2019 on the file of the Judicial Magistrate No.4, Tirunelveli, is liable to be set aside? is the point for consideration. 11. Before entering into further discussion, it is necessary to refer Sections 118(a) and 139 of the Negotiable Instruments Act, which deal with statutory presumptions, "Section 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 made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;" "Section 139 : Presumption in favour of holder. - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt or other liability." 12. It is the admitted case of both the parties that the complainant as well as the accused are practising Doctors at Tirunel....

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....e aspiration of its members for buying an own building for Indian Medical Association, they proposed to purchase a building in an apartment under Mayan IMA Residence from one Mr.Ramesh Raja of Mayan Builders for a sum of Rs. 44 lakhs, that they have also decided to inaugurate Indian Medical Association, Tirunelveli office in the new building along with State Council meeting of Indian Medical Association Tamil Nadu on 15.06.2014, that since the entire sale consideration was not paid and the inauguration date was nearing, the complainant asked the accused to give an empty cheque so that he would fill and give it to Mayan Builders as security in order to obtain the possession of the building and believing the words of the complainant, the accused gave a blank signed cheque, that thereafter they conducted the inauguration function in the said apartment on 15.06.2014 and subsequently, settled the entire balance sale price with the support of other members of their Association, that the accused, after coming to know that the cheque issued by them was not utilized, approached the complainant and requested him to return the cheque but the complainant informed them that the said cheque was ....

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....strate has rightly drawn a presumption under Section 139 of the NI Act in favour of the complainant. 18. The learned counsel appearing for the complainant would rely on a decision of the Hon'ble Supreme Court in Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197, wherein, the Hon'ble Apex Court has specifically held 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 NI Act and the relevant passages are extracted hereunder: "37. 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 makes it over to the payee remains liable unless he adduces evidence to rebut the presumption that the cheque had been issued for payment of a debt or in discharge of a liability. It is immaterial that the cheque may have been filled in by any person other than the drawer, if the cheque is duly signed by the drawer. If the cheque ....

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..... State of Gujarat, (2019) 18 SCC 106 in the following words: "In the case at hand, even after purportedly drawing the presumption under Section 139 of the NI Act, the trial court proceeded to question the want of evidence on the part of the complainant as regards the source of funds for advancing loan to the accused and want of examination of relevant witnesses who allegedly extended him money for advancing it to the accused. This approach of the trial court had been at variance with the principles of presumption in law. After such presumption, the onus shifted to the accused and unless the accused had discharged the onus by bringing on record such facts and circumstances as to show the preponderance of probabilities tilting in his favour, any doubt on the complainant's case could not have been raised for want of evidence regarding the source of funds for advancing loan to the appellant-accused....."" 20. The learned counsel appearing for the accused would rely on a decision of the Hon'ble Supreme Court in N.Vijay Kumar Vs. Vishwanath Rao N reported in 2025 SCC OnLine SC 873, wherein, the decision of the Hon'ble Supreme Court in Rajesh Jain Vs. Ajay Singh r....

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....ility'. [Kumar Exports and Sharma Carpets, (2009) 2 SCC 513] 42. The nature of evidence required to shift the evidential burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by the opposite party; it may comprise circumstantial evidence or presumption of law or fact. 43. The accused may adduce direct evidence to prove that the instrument was not issued in discharge of a debt/liability and, if he adduces acceptable evidence, the burden again shifts to the complainant. At the same time, the accused may also rely upon circumstantial evidence and, if the circumstances so relied upon are compelling the burden may likewise shift to the complainant. It is open for him to also rely upon presumptions of fact, for instance those mentioned in Section 114 and other sections of the Evidence Act. ..... 44. Therefore, in fine, it can be said that once the accused adduces evidence to the satisfaction of the Court that on a preponderance of probabilities there exists no debt/liability in the manner pleaded in the complaint or the demand notice or the affidavit-evidence, the burden shifts to the complainant and the presumptio....

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....vidence of his/her own. 22. The Hon'ble Supreme Court, in Tedhi Singh Vs. Narayan Dass Mahant reported in (2022) 6 SCC 738, has observed that the accused is not expected to discharge an unduly high standard of proof and the principle has developed that all which the accused needs to establish is a probable defence and as to whether a probable defence has been established is a matter to be decided on the facts of each case on the conspectus of evidence and circumstances that exist and the relevant portion is extracted hereunder: "It is also open to him to establish the very same aspect by pointing to the materials produced by the complainant himself. He can further, more importantly, achieve this result through the cross examination of the witnesses of the complainant. Ultimately, it becomes the duty of the Courts to consider carefully and appreciate the totality of the evidence and then come to a conclusion whether in the given case, the accused has shown that the case of the complainant is in peril for the reason that the accused has established a probable defence.." 23. No doubt, the presumption available under Sections 118 and 139 of the NI Act are rebuttable ....

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....re of Rs. 40 lakhs, he did not pay at the time of purchase but paid subsequently in piece-meal during one year period. But according to the complainant, since the accused were holding the amount of Rs. 65 lakhs given by the complainant as loans to the accused, the accused informed the complainant not to give any amount for purchase of the property and they would give the complainant's share also and that therefore, the complainant did not pay any amount for purchasing the said property. It is the further case of the complainant that since the complainant did not pay any amount for the purchase, while selling his share of the property to the accused he executed the sale deed under Ex.D.6 without receiving any sale consideration and that is why, it was recited in Ex.D.6 sale deed that sale consideration was already paid. But according to the accused, since the complainant did not want to retain any share in Perumalpuram property, the accused have paid the sale consideration and after settling the entire sale price, Ex.D.6 was executed by the complainant. To put it in short, according to the complainant, he did not receive any sale consideration for Ex.D.6 sale but on the other ha....

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....filed a civil suit in O.S.No.113 of 2015 for recovery of the said amount of Rs. 20 lakhs from the accused and was pending on the file of the III Additional District Judge, Tirunelveli. 32. The learned counsel appearing for the complainant would submit that the suit in O.S.No.113 of 2015 was decreed in his favour on 14.10.2019 and the appeal filed by the accused is pending in A.S.(MD)No. 41 of 2020 before this Court. 33. According to the complainant, the above two cheque transactions covered under the judgment and decree in O.S.No.113 of 2015 for recovery of money is totally different and distinct money transactions between the complainant and the accused and the same cannot be taken as a defence in the present proceedings. But according to the defence, the said two cheque payments were made by the complainant towards his share of sale consideration for Perumalpuram property to the accused, as the entire sale consideration and other expenses were paid by the accused earlier. According to the complainant, the said two cheques were dated 18.07.2013. But as rightly pointed out by the learned counsel appearing for the accused, P.W.1, in his cross examination, would admit that he d....

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....ering the complaint averments and also taking note of the judgment of acquittal made in S.T.C.No.128 of 2016 quashed the FIR. 40. As rightly pointed out by the learned counsel appearing for the accused, in Ex.D.2 (FIR), it was stated, 41. But as rightly pointed out by the learned counsel appearing for the accused, P.W.1, in his evidence, would say that he approached the accused on 01.01.2015 for repayment of the loan amount and they have issued Ex.P.1 cheque requesting him to present the cheque on 10.06.2015 and accordingly, he presented the cheque on 10.06.2015, but the complainant, in his pre-complaint notice or in the complaint, has nowhere whispered about the execution of promissory note and more importantly, taking back the promissory note by the accused on 11.06.2015. P.W.1, in his cross-examination, would say, 42. But according to the accused, they have sent a intimation to their bank on 20.08.2014 directing them not to honor the cheque in dispute. 43. As already pointed out, it is the specific case of the complainant that after the return of the cheque on 10.06.2015, he approached the accused and informed about the dishonor but the accused requested him to present ....

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