TaxTMI 
TaxTMI 
2026 (3) TMI 1054
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....ase, as alleged by the appellant/complainant (in short "complainant") in the complaint filed under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act") alleging that the respondent was in need of money in connection with his domestic need, therefore appellant gave a sum of Rs. 2.00 Lacs. Further the case of appellant is that respondent gave post dated cheque of Rs. 2.00 Lac dated 13.1.2009. On being presented the said cheque in the bank, the same got dishonoured due to the reason "insufficient fund". The accused/respondent did not return the amount even after receipt of demand notice on behalf of complainant. 4. The accused denied the allegations made in the complaint and stated that he has been falsely implicated in the case. His defence is that he lost his cheque book and the complainant by preparing a forged cheque, filed the complaint against him. 5. The learned Trial Court, after hearing the parties and considering the material on record, vide judgment dated 01.10.2011 convicted the accused for the offence punishable under Section 138 of the N.I. Act and sentenced to undergo R.I. for 02 years and directed to pay compensation of Rs.2,22,000/- t....
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.... trial Court has convicted the accused for the offence and sentenced as mentioned above. While in appeal, the learned lower appellate Court has acquitted the accused on the ground that the complainant has failed to prove the availability of funds out of which Rs.2 lacs allegedly has been advanced by him to the accused. Moreover, it is also reflected that on 13.01.2009, the cheque Ex.P/1 has been allegedly given by the accused and on the same day, it has been submitted before the bank for its encashment. If Rs.2 lacs remained deposited in the bank accounts of the accused, he would not issue any cheque of Rs.2 lacs rather he could withdraw the amount from his bank accounts. It is also observed by the learned lower appellate Court that the cheque Ex.P/1 was certainly given by the accused with certain conditions, viz. with instruction to submit the cheque for payment after some time or month, such cheque was given undated and without filling necessary particulars or the cheque has been got executed by the accused by exerting pressure upon him. Though in paragraph-14, the learned lower appellate Court has found proved that the cheque Ex.P/1 has been signed by the accused. 11. As rega....
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.... 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 is otherwise valid, the penal provisions of Section 138 would be attracted. 34. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars. This in itself would not invalidate the cheque. The onus would still be on the accused to prove that the cheque was not in discharge of a debt or liability by adducing evidence." 13. In this case, it is categorically held by both the Courts below that the cheque Ex.P/1 is established to be signed by the accused. As far as the reasoning given by the learned lower appellate Court in paragraph-12 is concerned, it is flimsy and baseless, which is given on the assumption that the c....
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....een executed by the accused and is not in writing of the accused and that he has in different writing got the particulars entered in the cheque with the help of some other person. He also denied the suggestions that he has by preparing the cheque of excessive amount has filed this complaint against the accused. 16. The complainant has supported its case in its entirety in his chief-examination and stated categorically in paragraph-5 of his chief-examination that the accused himself has executed the cheque Ex.P/1 and signed it in his presence. He also stated in paragraph-6 that the accused has received the notice Ex.P/5 and acknowledgement Ex.P/6 bears the signature of the accused. It is pertinent to mention here that the accused has not challenged his address mentioned on the notice Ex.P/5 and UPC receipt Ex.P/4. The Ex.P/6 acknowledgement of Department of Post India also reflects that the same address has been mentioned on it and it bears the signature of the accused at 'A to A' is exhibited by the complainant in his statement. This fact is unrebutted in the cross-examination of the complainant, therefore, it is established that the notice Ex.P/5 has also been duly serv....
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....gh vs. Mukesh Kumar, (2019) 4 SCC 197]. 18. The judgment of this Court in APS Forex Services Private Limited (supra) relied upon by learned counsel for the Respondent No.1- Accused only says that presumption under Section 139 of the NI Act is rebuttable and when the same is rebutted, the onus would shift back to the complainant to prove his financial capacity, more particularly, when it is a case of giving loan by cash. This judgment nowhere states, as was sought to be contended by learned counsel for the Respondent No.1-Accused, that in cases of dishonour of cheques, in lieu of cash loans, the presumption under Section 139 of the NI Act does not arise. 20. In the case of Satish Kumar Vs. State (Govt. NCT Delhi) and another, 2025 SCC OnLine Del 8429, in para 15 the Delhi High Court has observed that once the petitioner admitted his signatures on the cheques in question, the statutory presumptions under Sections 118 and 139 of the NI Act stood attracted against him. It was, therefore, incumbent upon the petitioner to rebut these presumptions by leading cogent and credible evidence to show that the cheques were not issued in discharge of any legally enforceable debt or li....
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....Act leads to an inference that there is merit in the AppellantComplainant's version. This Court in Tedhi Singh vs. Narayan Dass Mahant, (2022) 6 SCC 735 has held that the accused has the initial burden to set up the defence in his reply to the demand notice that the complainant did not have the financial capacity to advance the loan. The relevant portion of the said judgment is reproduced hereinbelow:- "10. ... The proceedings under Section 138 of the NI Act is not a civil suit. At the time, when the complainant gives his evidence, unless a case is set up in the reply notice to the statutory notice sent, that the complainant did not have the wherewithal, it cannot be expected of the complainant to initially lead evidence to show that he had the financial capacity. To that extent, the courts in our view were right in holding on those lines. However, the accused has the right to demonstrate that the complainant in a particular case did not have the capacity and therefore, the case of the accused is acceptable which he can do by producing independent materials, namely, by examining his witnesses and producing documents. It is also open to him to establish the very same aspect....