TaxTMI 
TaxTMI 
2026 (5) TMI 1161
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....ppellant that there was a good friendship relation between the complainant/ the appellant and the accused person and at the request of the accused person to give him Rs 3,00,000/- as a loan for his personal necessity on good faith the present appellant agreed to give the amount as loan and he paid the said amount of Rs. 3,00,000/- in presence of witness no 1 and 2. The respondent /accused person assured to re-pay the said amount within 3 months but after expiry of the said period despite the demand made by the complainant, the accused delayed the re-payment on various pretext. Lastly on 25.6.12 the accused came to the house of the complainant and gave two cheques bearing no. 294127 dated 26.6.12 of Rs. 1,00,000/- and 294126 dated 26.6.12 of Rs. 2,00,000/- of HDFC Bank Limited, to the complainant. The complainant /appellant deposited both these cheques on 26.6.12 at State Bank of India Krishnanagar (Gopinathpur) Branch. But the bank intimated that those cheques were dishonoured due to insufficient fund and to that extent the bank issued a certificate to the complainant. After that on 20.7.21012 the complainant sent a demand notice to the accused person through registered post with A....
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....on the other hand raised vehement objection and argued that since the instant appeal has been filed against an order of acquittal, the court must be very careful while reversing the order of acquittal. It is submitted that the cheques were issued on 25th of June, 2012 and on the next date it was placed for encashment that is on 26.6.12. On 27.7.2012 the demand notice was sent. The complainant is silent about execution of any agreement. No acknowledgment receipt of the demand notice either received or produced. The complainant admitted that at the time of the issuance of cheques it was not against any loan but for promoting business. In the examination under Section 313 the appellant specifically denied of taking any loan. It is further argued that the appellant failed to prove that it was not in discharge of debts or liabilities and hence the question of rebuttal does not arise and the Learned Trial Court rightly passed the order of acquittal. The Learned Advocate of the Opposite Party no. 2 relied upon the decision of N. Vijay Kumar vs Vishwanath Rao N. 2025 SCC Online SC 873 and prayed for dismissal of the appeal. Analysis 6. Heard the submissions of both the Learned Advoca....
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....d 26.6. 2012 for Rs. 2,00,000/- to the respondent who deposited before the Bank. Both the parties in this case were attached with a business relates to Chit Fund. In course of argument it revealed that the CEO of the said company is in correctional home on the allegation of cheating number of persons who invested in their company. According to this witness two cheques were issued by him for using it in the business by the complainant about 2 years ago without any date mentioned on those cheques. After closing the business when he intended to return back those two cheques when the complainant caused delay and taking advantage of his absence in his house the complainant and the witness made a conspiracy and presented those cheques in the Bank which he issued about a year ago. The respondent specifically denied of receiving any money from complaint as loan and hence there is no reason to repay any amount. 7. The respondent did not challenge the signature appearing in the cheque or denied about issuing those two cheques in favour of the complainant. He denied the issuance of the cheque in favour of the complainant on 25.6.12 and that receiving any notice. According to the respondent....
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....ot receive the notice alternatively to controvert the stand of the sendee with the risk to prove that in fact he received notice. In this case the appellant did not adduce the evidence of the postal authority. 9. In the instant case primarily the respondent could establish by adducing evidence that he was not present for about 15 days when the other notice was sent to his address. The postal endorsement was that for 7 days the person concerned was absent and therefore it cannot be deemed as 'served'. The accused person at the time of trial established that because of his mother's illness he was not present therefore it cannot be considered that he had deliberately and wilfully avoided the said service. The appellant did not make any further attempt to send the notice further. However the Learned Magistrate was of the view that service of notice upon the accused person was duly proved in the case and the accused failed to prove that he was not present in his house on and from 02.07.2015 to 08.08.2012 but this court failed to accept such conclusion. 10. So far the allegation of receiving the amount as loan of Rs. 3,00,000/ by the respondent followed by issuance of cheques in di....
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.... presentation for encashment the said cheque was dishonoured with an endorsement referred to drawer's bank and insufficient fund in the accused account. Statutory legal notice was sent and in reply the accused denied his liability. The Hon'ble Supreme Court discussed in Section 118 and 139 of the N.I. Act which raised the presumption which are reads as under. "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: X X X 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. The Hon'ble Supreme quoted the paragraph 17 of the decision of Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu and others (2008) 7 SCC 655 Firm, this Co....
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.... even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its nonexistence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist." From the above decision of this Court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the ....
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....roposition of law that once the holder of a cheque received the cheque the evidential burden lies on the accused to prove that the cheque was not received by the Bank towards the discharge of any debt or liability. Apparently no date is disclosed either by the complainant or by the witness who in fact denied about witnessing anything .Therefore the factual aspect both the parties were engaged in a Ponzy scheme which raises the probability of issuance of the cheque for the purpose of their business and this court find substance in the view taken by the Learned Magistrate that presumption under Section 139 of the Negotiable Instrument Act cannot be said to be substantiated. 16. In the decision as relied upon in Sanjoy Agarwala Versus Ajoy Sarkar passed by the Learned Co-Ordinate Bench on 19th December, 2023 in CRA 20 of 2021. A loan was taken by the accused on two occasions and promised to repay and an agreement was entered between the parties to that effect. The accused issued an account payee cheque which was dishonoured due to insufficient fund. The demand notice was sent which was duly served but no payment of the said cheque was made and accordingly the complaint was lodged u....