2015 (11) TMI 1914

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....with the modification in sentence vide judgment dated 2.5.2012 passed by the learned Additional Sessions Judge, Rourkela in Criminal Appeal No. 26 of 2011. 2. It appears that in this revision the earlier counsel appearing on behalf of the petitioner took repeated adjournments for hearing of the revision which has since been admitted. But subsequently, Mr. P.K. Mishra, learned counsel and associates entered appearance for the petitioner and filed Vakalatnama with the consent of the previous counsel appearing for the petitioner, made the submission to take the matter to any other date as he was appearing recently. Considering their submission, the case was adjourned to 28.7.2015. Thereafter, though the case was take up on 31.07.2015, ....

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....formed her bankers that the account had been closed and subsequently, her banker returned the cheque to her. Thereafter, the opposite party complainant issued a notice dated 25.2.2009 (Ext. 4) to the petitioner asking him to make payment of the aforesaid amount, but in vain. Therefore, finding no other way, the complainant-opposite party filed a complaint in the court of learned S.D.J.M., Panposh at Rourkela to proceed against the petitioner under Section 138 of N.I. Act. The petitioner faced his trial and the trial court in seisin over the matter recorded the judgment and order as stated earlier. The appeal against the same also failed. Hence, this revision. 4. I have perused the judgment and order of the trial court as well as the appe....

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....m guilty and sentenced him as stated earlier. In the appellate court, the learned counsel for the petitioner contended that the petitioner had issued the cheque in question not for discharge of any debt or liability but for a loan, as a collateral security. Taking into consideration the aforesaid evidence on record and also the presumption under Section 139 of N.I. Act in favour of the holder of a cheque that he receives the cheque for the discharge of whole or any part of the debt or liability though a rebuttal one at the instance of the drawer of the cheque that the cheque was not issued for discharge of any debt or liability, as the petitioner could not rebut that presumption, it was held by the appellate court that the same was drawn fo....

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....ion - AIR 2008 SC 1325 in the case of Krishna Janardhan Bhat v. Dattatraya G. Hedge that complainant is duty bound to prove that he received the cheque for discharge of legally enforceable debt or liability. The complainant otherwise has also proved the same by cogent evidence. Hence, no fault can be found with the finding that the petitioner drawn the cheque in favour of the opposite party for discharge of a legally enforceable debt or liability. 6. The contention with regard to complaint being bad for want of proof on the sufficiently of statutory notice, a presumption under Section 27 of General Clauses Act being available in favour of the opposite party with regard to sufficiency of the service of the notice inasmuch as it has been p....