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2024 (10) TMI 888 - HC - Indian LawsDishonour of Cheque - challenge to conviction and sentence under Section 138 of the Negotiable Instruments Act - applicability of presumption under Sections 118 and 139 of the Negotiable Instruments Act - HELD THAT - In the instant case there is no specific denial if any on the part of the accused with regard to his having issued Cheques as well as his signatures thereupon rather in his statement recorded under Section 313 Cr.P.C. he admitted complainant to be his acquaintance as well as factum of his having purchased the material but for less amount. He categorically deposed that he had issued blank Cheque as a security which subsequently came to be misused by the complainant. However to probablize the aforesaid defence no cogent and convincing evidence ever came to be led on record at the behest of accused as such no illegality can be said to have been committed by the learned Appellate Court while upholding the judgment of conviction and order of sentence recorded by learned trial Court. Since in the case at hand factum of issuance of Cheques as well as his signatures thereupon never came to be refuted at the behest of accused no illegality can be said to have been committed by both the Courts below while invoking Sections 118 and 139 of the Act which speak about presumption in favour of the holder of the Cheque that Cheque was issued towards discharge of a lawful liability. No doubt aforesaid presumption is rebuttable but to rebut such presumption accused either can refer to the documents and evidence led on record by the complainant or presumption can be rebutted by leading positive evidence if any. The Hon ble Apex Court in M/s Laxmi Dyechem V. State of Gujarat 2012 (12) TMI 106 - SUPREME COURT has categorically held that if the accused is able to establish a probable defence which creates doubt about the existence of a legally enforceable debt or liability the prosecution can fail. To raise probable defence accused can rely on the materials submitted by the complainant. Needless to say if the accused/drawer of the Cheque in question neither raises a probable defence nor able to contest existence of a legally enforceable debt or liability statutory presumption under Section 139 of the Negotiable Instruments Act regarding commission of the offence comes into play. In the case at hand complainant while examining himself as CW-1 tendered affidavit Ex.CW1/A wherein he successfully reiterated the contents of the complaint. He successfully proved on record that he had sold articles of hardware and grill gate amounting to Rs.80, 000/- to the accused who with a view to discharge his liability issued two Cheques for sum of Rs.40, 000/- each but same were dishonoured on account of insufficient funds in his bank account vide returning memos Ex.C2 and Ex.C4 - there is no evidence worth credence suggestive of the fact that Cheques in question were issued as a security but even if it is presumed that Cheques in question were issued as a security that may not be of much help to the accused for the reason that by now it is well settled that Cheques if any issued as a security can also be presented for encashment if amount taken or promised to be repaid is not paid. This Court finds that all the basic ingredients of Section 138 of the Act are met in the case at hand. Since Cheque issued by accused towards discharge of his lawful liability was returned on account of insufficient funds in the bank account of accused and he despite having received legal notice failed to make the payment good within the stipulated time complainant had no option but to institute proceedings under Section 138 of the Act which subsequently rightly came to be decided by both the Courts below on the basis of pleadings as well as evidence adduced on record by the respective parties. This Court sees no valid reason to interfere with the well reasoned judgments recorded by the Courts below which otherwise appear to be based upon proper appreciation of evidence available on record and as such same are upheld. The present criminal revision petition is dismissed being devoid of any merit.
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