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2021 (5) TMI 808 - HC - Indian LawsDishonor of Cheque - cheque on presentation was dishonoured for want of sufficient funds - acquittal of the accused - rebuttal of presumption - Sections 118, 138 and 139 of the NI Act - HELD THAT:- The complainant admittedly is a Public Limited Company incorporated under the Companies Act engaged in the business of manufacturing and selling tea. It is also not in dispute that accused is a distributor of the complainant company at Calicut. The case of the complainant is that it used to supply tea to the accused on credit basis and towards the discharge of the amount due, the cheque in question was issued. In order to prove the transaction as well as the issuance and execution of the cheque, two witnesses were examined on the side of the complainant as PW1 and PW2. PW1 is the Accounts Officer and power of attorney holder of the complainant company. Ext.P13 is the copy of the minutes of the company authorizing PW1 as the PA holder of the complainant company. He gave evidence in tune with the pleadings in the complaint - The Court below on appreciation of evidence found that the evidence of PW1 and PW2 is insufficient to prove the transaction and execution of the cheque. The Court below further found that the amount shown in Ext.P3 cheque does not tally with Ext.P15 tax invoice and Ext.P9 ledger extract. The presumption under S. 139 of the Negotiable Instruments Act is a presumption of law, as distinguished from presumption of facts. The obligation on the prosecution may be discharged with the help of presumptions of law and presumptions of fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. There is the mandate of presumption of consideration in terms of the provisions of the Act. The onus shifts to the accused on proof of issuance of cheque to rebut the presumption that the cheque was issued not for discharge of any debt or liability in terms of S. 138. Once signature, execution and handing over of the cheque are satisfactorily proved, the presumption u/s. 139 of the NI Act would come into play and remain in force until the accused discharges the burden. The complainant has successfully established the signature, execution and handing over of the cheque. There is absolutely no evidence adduced to rebut the said presumption available to the complainant u/s. 139 of the NI Act. No evidence has been adduced by the accused to substantiate that the cheque in question was issued in blank as the security at the commencement of the business transaction between him and the complainant company. In spite of the receipt of the lawyer notice, the accused did not send any reply also. There is absolutely no evidence or circumstances probabilising the defence set up by the accused. The impugned judgment of acquittal, thus, cannot be sustained and is liable to be set aside - Appeal allowed - decided in favor of appellant.
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