TaxTMI 
TaxTMI 
2026 (8) TMI 590
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....accused. Perused the trial court records. 3. I shall refer the parties in this appeal as 'complainant' and 'accused' for easy reference. 4. Consequent to dishonour of cheque, (when the cheque presented for collection the same returned with endorsement, "payment stopped by drawer") bearing No. 140482, dated 28.01.2013, for Rs.7,00,000/- (Rupees seven lakh only), alleged to be issued by the accused to the complainant, the complainant launched prosecution, alleging commission of offence punishable under Section 138 of the NI Act by the accused, when the accused failed to repay the same on demand. 5. The learned Magistrate took cognizance of the offence punishable under Section 138 of the NI Act. During trial, PW1 was examined and Exts.P1 to P5 were marked on the side of the complainant. After questioning the accused under Section 313(1)(b) of Cr.P.C., when opportunity was provided to the accused to adduce defence evidence, the accused himself got examined as DW1, and Exts. D1 to D7(a) were tendered in evidence through him. 6. On appreciation of evidence, the learned Magistrate found that the complainant failed to prove beyond doubt that he was the holder of....
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....secution for the offence under section 138 of Negotiable Instruments Act. It is also held that mere production of a cheque or marking the same as an exhibit will not prove that the cheque is drawn by the accused. It is further, held that mere fact that the cheque produced in court came from possession of complainant alone will not sufficient to prove the execution. Thus complainant has to prove his case." 10. While assailing the verdict, the learned counsel for the complainant argued that by the evidence of PW1, supported by Exts.P1 to P5, supported by the evidence given by DW1, the accused himself, stating that on the date of dishonour of the cheque, only 358 Rs. was available in the account of the accused, the complainant had discharged his initial burden in the matter of transaction led to execution of Ext.P1 cheque and also that there was no sufficient funds in the account of the accused to honour the cheque on the date of presentation of the cheque. In such a case, the learned Magistrate went wrong in negating the benefit of presumptions in favour of the complainant under Sections 118 and 139 of the NI Act. The learned counsel argued that in the instant case, the liability ....
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....ffidavit. According to him, in order to discharge an amount of Rs.7,00,000/- due to the complainant, the accused issued Ext.P1 cheque dated 28.01.2013. He testified that when he had presented the cheque for collection on 05.02.2013, the same got dishonoured with endorsement "payment stopped" on 06.02.2013. Issuance of Ext.P3 lawyer notice and acceptance of the same by the accused as per Ext.P5 acknowledgment card were also deposed by PW1. He also deposed that Ext.P4 is the postal receipt showing issuance of legal notice. During cross-examination, he was asked about his job, income and savings. and in reply to the questions put to him, he answered that he worked as an employee of BSNL and at the time his retirement, he had drawn a salary of Rs.72,000/-. Out of which, Rs.12,000/- required for his monthly expenses and he had a savings of Rs.40,000/- per month. He also deposed that the money was given on 28.01.2013 at his residence and the money was kept at his residence. 14. The learned counsel for the accused argued that keeping a huge sum of Rs.7,00,000/- at the house without keeping the same in a bank account, admittedly when PW1 maintained a bank account, is an absolute improba....
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.... as he was not aware about the details thereof for want of anything written in the counter foils. 17. Here, the accused admitted borrowing of Rs.2,35,000/- from the complainant during 2011 and also admitted issuance of Ext.P1 and another cheque bearing his signature. The further case of the accused is that he had repaid Rs.35,000/- out of Rs.2,35,000/- by Ext.D7(a). The further case is that, the remaining Rs.2,00,000/- also was repaid. In fact, DW1, while giving evidence, also deposed that he had discharged the liability in full, but the cheques were not returned on discharge of the liability and thus, he had issued stop memo. In this connection, it is relevant to note that the admitted case of the accused is that he had borrowed Rs.2,35,000/- and discharged the same. In order to prove the discharge of Rs.35,000/-, Ext.D7(a) is available. However, as regards to the discharge of Rs.2,00,000/-, apart from the oral evidence of DW1 and the contention raised in Ext.D4 reply notice, no other evidence forthcoming. 18. It is well settled law that when a party asserts discharge of a liability, he must prove the same with the aid of cogent and convincing evidence. Here, even though Ext....