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2021 (3) TMI 904 - HC - Indian LawsDishonor of Cheque - Whether the Appellate Court has erred in appreciating the evidence, allowing the appeal and acquitting the respondent - accused? - HELD THAT:- The answer is in affirmative. A mandatory presumption is required to be raised in respect of Negotiable Instrument in terms of Section 118 (b) of the Act. Section 139 of the Act merely raises a presumption that the cheque has been issued for discharge of any debt or other liability. The proceeding under Section 138 of N.I. Act is quasi criminal in nature. In these proceedings, proof beyond reasonable doubt is subject to presumptions envisaged under Sections 118, 139 and 146 of N.I. Act - An offence under Section 138 of N.I. Act is committed not on dishonor of cheque, but on failure of drawer of the cheque to make payment within 15 days from the date of receipt of notice of dishonor. An essential ingredient of Section 138 of N.I. Act is that the cheque in question must have been issued towards a legally enforceable debt. Sections 118 and 139 of the Act envisage certain presumptions. Under Section 118 of the Act, a presumption shall be raised regarding consideration, date, transfer, endorsement and regarding holder in the case of Negotiable Instruments. Even under Section 139, a rebuttable presumption shall be raised that the cheque in question was issued towards discharge of legally enforceable debt. The accused has not at all denied his signature on Ex.P.1. The accused has contended that other writings on Ex.P.1 do not belong to him. PW.1 admitted hand writing on Ex.P.1 is not of accused. It is not objectionable or illegal in law to receive an inchoate negotiable instrument duly signed by the maker despite the material particulars are kept blank if done with an understanding and giving full authority to the payee to fill up the material contents as agreed upon. Such a course of action in law cannot vitiate the transaction nor can invalidate the negotiable instrument issued and such transaction fully binds the maker of instruments to the extent it purports to declare. The Trial Court on appreciating the evidence on record has rightly held that the complainant has established that the cheque in question was issued for discharge of debt and accused has failed in all the attempts to make a probable defense which would falsify the case of prosecution. Therefore, the Trial Court has rightly convicted the respondent - accused for the offence punishable under Section 138 of N.I. Act. The Appellate Court without appreciating the evidence in proper perspective and on assumption has held that the complainant has not proved that Ex.P.1 - Cheque issued towards payment of legally enforceable debt. The said finding of the Appellate Court is erroneous. Appeal allowed - decided in favor of appellant.
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