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2017 (2) TMI 413 - HC - Indian LawsOffence under Section 138 NI Act - Cheque bounce - Held that:- The cheque has been signed by the accused is not denied by the accused. This itself raises a presumption against the accused under Section 139 of Negotiable Instruments Act that the cheque had been issued in respect of an outstanding debt or for consideration. The accused had claimed in his defence that the said cheque had been delivered to one Manoj Kumar from whom he had taken a loan, which he had repaid. The accused claimed that the cheque was not returned by Manoj Kumar to him and that Manoj Kumar – who was also known to the complainant, had delivered the cheque to the complainant for it being misused. The same story was adopted in respect of Ex CW-1/1 and Ex. CW-1/2. In the present case, the initial burden was on the accused to probablise his defence. It was for the accused to establish upon preponderance of probabilities, his defence that he had taken a loan from Manoj Kumar in respect whereof the cheque had been issued. However, the accused did not produce the so-called Manoj Kumar to establish his loan transaction with Manoj Kumar, and also to establish that he had delivered the cheque in question to Manoj Kumar. No document evidencing the alleged loan transaction with Manoj Kumar was produced by the accused. He did not produce his own accounts / ITR to show that he had reflected the so called loan taken by him from Manoj Kumar in his books. The statement of the accused is as vague, as could be. He gives no particulars of the amount of loan taken from Manoj Kumar; the date of the said loan transaction; the manner in which it was taken – i.e. whether in cash or through cheque; the dates(s) of its repayment, and; the manner of its repayment i.e. whether in cash or through cheque. Though the accused claimed that he had repaid the loan to Manoj Kumar, no document evidencing repayment of the loan was produced. The accused also did not explain as to why the cheque allegedly given to Manoj Kumar was, firstly, given in blank i.e. without name and, secondly, why it was not taken back at the time of repayment of the loan to Manoj Kumar. No notice or communication was issued by the accused to Manoj Kumar, recording that the loan had been repaid but the cheque not returned. The accused also did not stop payment of the said cheque by issuing any communication to his bank contemporaneously. The stand taken by the accused that documents Ex CW-1/1 and CW-1/2 had been given to Manoj Kumar is also completely belied by a perusal of the said documents. Both these documents have been executed in favour of, and by reflecting the name of the complainant Mukesh Kumar, and not Manoj Kumar. Had the loan been taken from Manoj Kumar and the said document executed and delivered, the same would have been delivered in the name of Manoj Kumar and not Mukesh Kumar. Thus, the stand taken by the accused in his defence with regard to issuance of the cheque to secure a loan taken from Manoj Kumar, was not at all probabalised. For all the aforesaid reasons, the impugned judgment is set aside and, since all the ingredients of the offence under Section 138 NI Act are established in the present case, the respondent/ accused is convicted of the offence under Section 138 of Negotiable Instruments Act.
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