TMI Blog2001 (10) TMI 1060X X X X Extracts X X X X X X X X Extracts X X X X ..... ft the burden of proof onto the appellant complainant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The High Court erroneously set aside that conviction. Thus the impugned judgment is set aside. The conviction and sentence as awarded by the Magistrate by his order dated 21-3-1994, stand. The first respondent is granted one month s time to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant on Central Bank, had been dishonoured with the remarks insufficient funds . The appellant had issued a legal notice dated 28-4-1993. Receipt of the said notice is admitted. A reply dated 21-5-1993, was sent by the first respondent. However, no payment was made. 3. After trial, the Judicial Magistrate II, Kumbakonam, convicted the first respondent under section 138 and directed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis that the burden of proving consideration for a dishonoured cheque is on the complainant. It appears that the learned Judge had lost sight of sections 118 and 139 of the Act. Under section 118 unless the contrary was proved, it is to be presumed that the negotiable instrument (including a cheque) had been made or drawn for consideration. Under section 139, the court has to presume, unless cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant to prove that the cheque was issued for a debt or liability. This is an entirely erroneous approach. The first respondent had to prove in the trial, by leading cogent evidence, that there was no debt or liability. The first respondent not having led any evidence, could not be said to have discharged the burden cast on him. The first respondent not having discharged the burden of proving that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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