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2015 (1) TMI 1389 - HC - Indian LawsExistence of a legally enforceable debt or liability - cheque issued earlier were dishonored due to insufficiency of funds - now, the accused claimed that there was no liability on him and the cheque was given to Chit Fund Company as a security, of which the accused was a member - Section 138 of N.I. Act - Held that:- Since offence under Section 138 of N.I. Act is a document based technical offence, deemed to have been committed because of dishonour of cheque issued by the accused or his company or his firm, the accused must disclose to the Court as to what is his defence on the very first hearing when the accused appears before the Court. The accused, however, did not disclose their defence at that stage. Thereafter when all the incriminating evidence was put to the accused while recording their statement under Section 313 Cr.P.C. at that time, there was no denial that the cheque in question was signed by them. However, it was alleged that the cheque was not issued against any debt or liability and that the cheque was not issued to the complainant. Service of legal notice was also denied. Accused claimed that he was a member of Chit Fund Company and the cheque in question was given to Chit Fund Company as a security. In order to substantiate this plea, DW1 Rajesh Kumar, employee of Sevarath Chit Fund Pvt. Ltd. was examined and this witness denied that any cheque or payment was received by the Chit Fund from the accused. Since the witness did not support the case of accused, he was cross-examined by the counsel for the accused and in cross-examination, the witness categorically deposed that the company did not take any cheque amounting to ₹ 3 lacs from the accused. He also deposed that cheque Ex.CW1/1 was never taken from the accused - the defence of issuing of the blank signed cheque to the Chit Fund taken by the accused falls to the ground. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation - the accused has failed to raise a probable defence which may create doubts about the existence of a legally enforceable debt or liability. Further prior to the filing of the complaint, after the dishonour of the cheque, statutory notice was served upon the accused persons calling upon them to pay the cheque amount. Service of this legal notice has been denied by the accused in their Statement u/s 313 Cr.P.C. - Although this presumption is rebuttable but mere denial to receive the notice is not sufficient to rebut the presumption. It is for the accused to show that common course of business was interrupted by some supervening circumstances. It is not the case of the accused that the notice was not sent on a correct address or some supervening circumstances existed which prevented ordinary course of business in delivering the notice to the addressee. Moreover, even no suggestion was given to the complainant that legal notice was not served upon the accused. Under the circumstances, it was duly proved by the complainant that on dishonour of cheque, statutory notice was served upon the accused. The accused failed to reply to the statutory notice which leads to the inference that there was merit in the complainant‟s version. The accused did not raise a probable defence. The defence of giving signed cheque to the Chit Fund Company was demolished by the accused‟s own witness DW1- Rajesh - this Court finds that the judgment of acquittal passed by the learned Trial Court is erroneous and perverse and is not sustainable both on facts and in law. Appeal allowed.
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