TMI Blog2013 (9) TMI 1266X X X X Extracts X X X X X X X X Extracts X X X X ..... e was returned dishonoured with an endorsement that the funds were insufficient as per the memo dated 5.11.2005. The appellant thereafter had issued a legal notice making a demand for payment. The notice was returned unserved and thereafter, the complaint was lodged. The same was contested. The respondent denied that there was any transaction and that the cheque had been issued in discharge of any legal liability. On the basis of the defence placed, the court below had framed the following points for consideration: (1) Whether the complainant proves that towards part payment of the amount due to him, the Accused has issued a cheque bearing No.262220, dated 05-10-2005, for a sum of ₹ 50,000/- drawn on the Corporation Bank, NCM Branch, Hubli, and that when the said cheque was presented for encashment, the same has been returned unpaid for want of sufficient funds in the Account of the accused? (2) Whether the complainant further proves that he has issued notice to the accused to her address and that the accused has refused to receive the said notice and that therefore the accused was duly served with the notice and that the accused has not paid the amount due under the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the respondent and another has been misutilized in seeking to make out a case for an offence punishable under Section 138 and would submit that on that short ground, the judgment of the court be set aside and the respondent be convicted. 4. On the other hand, the learned counsel for the respondent would seek to justify the judgment of the court below at length. Firstly, it is pointed out that the notice issued under Section 138 was not at all addressed to the respondent at the address at which the respondent was residing, but was sent to an address which was not the actual address of the respondent. Secondly, the demand under the notice was for a sum of ₹ 70,000/-, whereas the cheque in question was for a sum of ₹ 50,000/-. Therefore, in the absence of indicating the manner in which a sum of ₹ 70,000/- was arrived by indicating the heads under which such a claim was being made, the notice issued was defective and could not be attributed or related to the cheque in question. It is also pointed out that the glaring circumstance of the respondent and her husband being well to do and being possessed of adequate sources of income and not being in need of fund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into account the defence raised as regards the cheque not being issued in discharge of a legal liability or there being no such transaction in respect of which the cheque could have been issued. The court below has extensively dealt with the pleadings and the defence taken and there are reasoned findings as seen from Paragraph 26 of the judgment, whereby the court below has appreciated the evidence tendered on behalf of the respondent in support of her defence, which shifted the burden of establishing that there was a legally enforceable debt in respect of which the cheque had been issued and therefore, the learned counsel would submit that the court below was justified in acquitting the accused. 5. In the light of the above contentions and on an examination of the record and more particularly, the findings of the court below, the point for consideration by this court is, whether the Trial Court was justified in holding that the respondent has established that there was no legal liability in respect of which the cheque in question had been issued. 6. By way of reply, the learned counsel for the appellant would contend that insofar as the contention of the notice issued un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the respondent and her husband were well-to-do and there was no need for them to borrow any money, is again a self-serving claim. There is no rule or a law which declares that there should be a presumption in favour of a person who is well-to-do and that he would never borrow money notwithstanding that he has sufficient finances at hand. The further contention that the cheque is found to be filled up in different inks and in different hands, and therefore, was an invalid instrument, is also not tenable, as the banker of the respondent has not negated the instrument on that ground, for if this were indeed an acceptable argument, that would be the first ground on which the banker would negate the instrument. The cheque having been dishonoured for want of sufficient funds, leads to the direct consequence of bringing about cause of action for an offence punishable under Section 138. Therefore, a Banker would not normally issue such an endorsement when the cheque could have been dishonoured on a more serious objection that the cheque cannot be accepted, as it was found to be in different hands in different inks. In any event, the law does not prescribe that the instrument should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irement under Section 138 for the appellant or the holder of a cheque to firstly establish that there was a transaction in respect of which the cheque had been issued. On the other hand, the pre- conditions do not contemplate any such requirement. The cheque having been issued by the respondent and the same having been duly signed and the cheque having been presented within the time prescribed, a notice having been issued within the time prescribed, making a demand and the complaint having been brought again within the prescribed time, is sufficient compliance of the requirement of Section 138 and the further contention that there ought to have been pleadings and proof of a subsisting transaction in respect of which the cheque had been issued, is not contemplated under Section 138. If on a reading of Section 139, this position is made even more certain that the presumption is already in favour of the holder of the cheque and the same having been issued in discharge of a legal liability. Therefore, the primary argument of the learned counsel for the respondent and the finding of the court below proceeding on that assumption, is not tenable form the appreciation of the evidence that ..... 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